The highest court in South Africa has overturned a legislation that prohibited men from adopting their spouses’ surnames.
The Constitutional Court decided that the statute was a “colonial import” that amounted to gender-based discrimination, ruling in favor of the two couples who filed the case.
According to Jess Donnelly-Bornman of the public broadcaster SABC, Andreas Nicolas Bornman was unable to hyphenate his surname to add Donnelly, his wife’s surname, while Henry van der Merwe was not allowed to adopt his wife’s surname, Jana Jordaan.
For the decision to be effective, Parliament must now change the Births and Deaths Registration Act and its rules.
During the years of white minority rule in South Africa, the law was first implemented.
The law, according to two couples, was outdated, patriarchal, and infringed against the equality rights guaranteed by the 1994 South African constitution, which ended apartheid.
They sought the Constitutional Court to uphold their decision after successfully contesting the law in a lower court.
The Constitutional Court noted that “in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name” but this changed after the “arrival of the European colonisers and Christian missionaries, and the imposition of Western values”.
“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,” the court said.
It added that South Africa had made a “significant advancement” in gender equality, but some laws and practices that perpetuated “harmful stereotypes” still remained in place.
Neither the Minister of Home Affairs Leon Schreiber nor the Minister of Justice and Constitutional Development Mamoloko Kubayi opposed the two couples’ application, instead agreeing that the law was outdated.
The Free State Society of Advocates, a legal organization, entered the action on behalf of the two couples.
According to the Sowetan news site, it contended that by limiting a man’s ability to take on his wife’s last name, the law reinforced negative stereotypes by depriving men of an option that women had.
