South Africa’s Constitutional Court has struck down a law that prevented men from adopting their wives’ surnames, declaring it discriminatory and rooted in colonial practices.
The ruling followed a case brought forward by two couples who challenged the Births and Deaths Registration Act. The court agreed with their argument that the statute violated constitutional guarantees of equality and perpetuated gender bias.
Henry van der Merwe had been denied the right to take his wife Jana Jordaan’s surname, while Andreas Nicolas Bornman was unable to legally hyphenate his surname with that of his wife, Jess Donnelly-Bornman, according to South Africa’s public broadcaster, SABC.
Parliament is now expected to amend the Act and its regulations to give full effect to the judgment, BBC reported.
The Constitutional Court emphasized that naming traditions in African societies were not historically tied to European models. “In many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name,” the court observed. That changed, it said, with “the arrival of the European colonisers and Christian missionaries, and the imposition of Western values.”
It explained that the expectation for women to take their husband’s surname was imported from Roman-Dutch law and entrenched by colonial legislation across much of sub-Saharan Africa. The justices added that while South Africa had made “a significant advancement” in gender equality, certain outdated laws still reinforced “harmful stereotypes.”
Neither Home Affairs Minister Leon Schreiber nor Justice and Constitutional Development Minister Mamoloko Kubayi opposed the couples’ application, acknowledging the law’s outdated nature.
The Free State Society of Advocates also supported the challenge. It argued that denying men the same naming rights as women entrenched stereotypes and restricted choice, as reported by the Sowetan.
