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South Africa’s highest court has struck down a law that barred men from adopting their wives’ surnames, describing it as a colonial legacy rooted in gender discrimination.
In a landmark decision, the Constitutional Court sided with two couples who had challenged the legislation, ruling that the restriction was a “colonial import” inconsistent with the country’s commitment to equality.
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Henry van der Merwe had been prevented from taking the surname of his wife, Jana Jordaan, while Andreas Nicolas Bornman was denied the right to hyphenate his surname to include that of his wife, Jess Donnelly-Bornman, according to South Africa’s public broadcaster, SABC.
The judgment means Parliament must now amend the Births and Deaths Registration Act and its regulations before the ruling can take effect.
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The contested law dates back to South Africa’s era of white-minority rule. The couples argued that it was archaic, patriarchal, and in violation of the constitutional right to equality enshrined after the end of apartheid in 1994. Although they had already succeeded in a lower court, they sought confirmation of the decision from the Constitutional Court.
The court observed that “in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name” but this shifted with “the arrival of the European colonisers and Christian missionaries, and the imposition of Western values.”
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It further noted: “The custom that a wife takes the husband’s surname existed in Roman-Dutch law, and in this way was introduced into South African common law. This custom also came into existence as a result of legislation that was introduced by countries that colonised African countries south of the Sahara.”
While acknowledging South Africa’s “significant advancement” in gender equality, the court stressed that some outdated laws and practices still reinforce “harmful stereotypes.”
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Neither the Minister of Home Affairs, Leon Schreiber, nor the Minister of Justice and Constitutional Development, Mamoloko Kubayi, opposed the application, agreeing that the legislation was outdated.
The Free State Society of Advocates also supported the couples in the case, arguing that denying men the right to adopt their wives’ surnames entrenched inequality by preserving a choice only available to women.