JOHANNESBURG – The Constitutional Court of South Africa has ruled that husbands are legally permitted to adopt their wives’ last names.
In a judgement delivered on Thursday by Judge Leona Theron, the court declared Section 26(1)(a) to (c) of the Births and Deaths Registration Act unconstitutional insofar as it unfairly discriminates based on gender, by failing to afford men the right to assume the surname of women after marriage.
In a victory for two couples who brought the case, the Constitutional Court ruled that the law was a “colonial import” that amounted to gender-based discrimination.
Henry van der Merwe had been denied the right to take the surname of his wife Jana Jordaan, while Andreas Nicolas Bornman could not hyphenate his surname to include Donnelly, the surname of his wife, Jess Donnelly-Bornman.
The Bloemfontein High Court previously ruled in their favor, declaring the provisions unconstitutional and directing Home Affairs to correct affected records. The Constitutional Court has now confirmed that ruling.
The Department of Home Affairs was ordered to pay the applicants’ legal costs, including the costs of two counsel.
In its judgement, 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 perpetuate “harmful stereotypes” still remained in place.
