South Africa’s highest court has ruled that husbands can legally take the surname of their wives, overturning a previous law that prevented them from doing so.
The Constitutional Court described the old legislation as a “colonial import” that amounted to gender-based discrimination. The landmark decision comes after two couples brought the case forward, arguing that the law was archaic and patriarchal.
Henry van der Merwe had been denied the right to take the surname of his wife Jana Jordaan, while Andreas Nicolas Bornman was blocked from hyphenating his surname to include that of his wife, Jess Donnelly-Bornman.
The court noted that “in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name”. It stated that the practice of a wife taking the husband’s surname was a custom introduced through Roman-Dutch law and reinforced by European colonisers.
The ruling means Parliament must now amend the Births and Deaths Registration Act and its regulations for the change to take full effect.
Neither the Minister of Home Affairs, Leon Schreiber, nor the Minister of Justice and Constitutional Development, Mamoloko Kubayi, opposed the couples’ application. Both agreed the law was outdated.
A legal body, the Free State Society of Advocates, also supported the couples. It argued that the old law perpetuated harmful stereotypes by denying men a choice that was freely available to women.
The court emphasised that although South Africa has made significant progress in gender equality, some laws that reinforce stereotypes have remained in place until now.
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