Abstract

Gender-based violence against refugees has received increasing attention over the last two decades. However, the tendency worldwide, as well as in South Africa, has been to focus on ‘truly horrific’ and ‘culturally grotesque’ acts while ignoring the more invisible forms of gender-based violence. The tendency to focus on the conditions of the country of origin, rather than individual cases, can hinder women’s access to asylum on the ground of intimate partner violence if their country of origin is hailed as having a more progressive approach to women’s rights. This article seeks to bring the more invisible harm to the fore and will focus on intimate partner violence affecting female refugees in their countries of origin and in their host country, South Africa. We make recommendations for South Africa to recognise intimate partner violence as a valid asylum claim, to tailor effective services for female refugees who are victims of intimate partner violence in South Africa, and to fulfil its international and domestic legal obligations to refugee women by adopting a transformative reparations framework.

Abstract

Intimate partner violence (IPV) is an epidemic that is often viewed through the singular lens of heterosexuality. The discourse about IPV and mechanisms to combat IPV are heteronormative in nature and erase the experiences of queer persons in relationships and the manner in which violence manifests in these relationships. This paper explores third party responses to IPV in lesbian relationships. This violence is informed by heteropatriarchial attitudes and is re-enacted by third party responders, which has the effect of silencing survivors of same-sex IPV. The conceptualisation of the second closet emerges from this phenomenon.

For lesbians, keeping secrets about abuse in our relationships is also linked to homophobia and heterosexism: it is still risky for some of us to be out, and it can be dangerous to reveal abuse within an already oppressive context.

Abstract

Violence against women and children remains a pervasive human rights violation in South Africa, despite laws and policies aimed at preventing violence and advocating for the protection of the rights and dignity of women. The impact of violence on South African society and on women’s mental health and quality of life is significantly encountered in mental health contexts where many women present for psychiatric and psychological treatment. This discursive article presents a mental health practitioner’s perspective and highlights experiences of working therapeutically with female victim-survivors of violence in a psychiatric hospital in the Western Cape. I argue for greater intersectoral collaboration and responsive partnerships between mental health services, non-governmental organisations, legal centres, the criminal justice system and civil society. Further recommendations are made to challenge discriminatory practices and attitudes, and to strengthen violence prevention initiatives to enable the empowerment and safety of women in South African society.

Abstract

This contribution considers the future of the English law of contract in the form of three conversations that are alert to the disruptive impact of technologies on both the content of legal rules and the way that lawyers think – and indeed on the kind of conversations that lawyers have with one another. The first conversation is concerned with ‘coherence’ in contract law, with the application of general principles to novel fact situations and to new phenomena, with the smoothing of tensions within the law, and with the internal integrity of legal doctrine. The second conversation focuses on a tension between, on the one hand, what may be called a traditional private law ‘coherentist’ concern for doctrinal integrity and the primacy of principle over policy and, on the other hand, a more ‘regulatory’ approach to contracts, especially to consumer contracts, in which policy and instrumental rationality prevail. The third conversation focuses on the use of emerging transactional technologies (such as blockchain-supported smart contracts and AI) that have the potential to displace the rules and principles of contract law. Instead of legal code governing transactions, might we find that technological coding does all the work, making, performing and enforcing ‘contracts’? Each conversation suggests a different future for contract law. The first conversation suggests that contract law will have difficulty in living up to the private law ideal of coherence; the second suggests that coherentism will struggle to survive as it is challenged by an increasingly regulatory approach to the governance of transactions; and the third suggests that, in a world of smart transactional technologies, there is a serious question mark about the relevance of contract law as a body of rules that governs transactions.

Abstract

This contribution uses J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89 as a peg on which to hang a number of fundamental questions about contract: What is a contract? Does the word ‘contract’ sometimes refer to a legal relationship rather than a juridical act? If so, does this matter? Is the law on implied terms satisfactory? Might a duty of good faith and fair dealing in contract law be a better way of dealing with certain problems than resort to the implication of terms? When is a breach of contract serious enough to justify cancellation or rescission? Should a supplier of defective goods have a right to cure the defect? Is there a risk of forgetting the difference between a right to withhold performance and a right to rescind or cancel? These questions are prompted by the fact that this was a straightforward case and similar situations must occur regularly. Yet, different judges reasoned differently and came to different conclusions in the course of the case being appealed all the way to the House of Lords. The question, therefore, is: how might a simple case have been better, or in a more straightforward way, approached through law? The contribution argues that the Draft Common Frame of Reference (the DCFR) provides both concepts and rules that would have reached the ultimate conclusion in Ritchie much more quickly and perhaps the case would not have needed to be litigated at all.

Abstract

This essay pursues a theme identified by Dale Hutchison – judges’ use of their technical expertise to achieve creativity in law – and asks how far that may be relied upon by law reform bodies, such as the Law Commissions in the United Kingdom. The question is whether such bodies should take account of means other than legislation for having their recommendations put into effect. It is suggested that, while law reform bodies should be fully aware that their published work is a source of information, ideas and arguments for practitioners and judges which may contribute to the judicial development of the law, they should address themselves only to government and the legislature.