Online Reporter
The recent Constitutional Court judgment allowing men to legally assume their wives’ surnames undermines African cultures, traditions and spirituality as it affects family lineage, which usually follows the paternal line.
This is the view of expert Prof Gugu Mazibuko, after the judgment on Thursday, which stated that the South African law, by allowing only women to amend their surname, committed unfair gender discrimination in contravention of international law principles.
The case first came before the Free State High Court when two couples challenged the provisions of the Birth and Deaths Registration Act.
They argued the provisions were unconstitutional and unfairly discriminates on the grounds of gender by failing to afford a woman the right to have her spouse assume her surname and by failing to afford a man the right to assume the surname of the woman after marriage.
Jana Jordaan, who is married to Henry van der Merwe, agreed before their marriage that Van der Merwe would assume Jordaan’s surname to preserve her familial ties to her deceased biological parents.
When registering the marriage, the couple was advised by the home affairs department it was not possible for Van der Merwe to assume his wife’s surname.
Jess Donnelly-Bornman, who is married to Andreas Nicolaas Bornman, also wished to retain her surname to preserve familial ties with her biological parents as an only child. The couple opted for their surnames to be reflected as “Donnelly-Bornman”.
They were advised by the department that only a female spouse may amend her surname, not a male spouse.
After the Free State High Court declared the sections unconstitutional, the case was brought to the Constitutional Court to confirm the order of constitutional invalidity.
In its judgment, the court said in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name.
“There are several historical and cultural authorities that suggest this as evidenced by traditional African cultures, customary law in many African countries, colonial records and accounts from the 18th and 19th centuries, missionary records from the same period and oral tradition.”
The court also said in parts of Africa, the tradition of a woman assuming her husband’s surname was rooted in colonialism, religion and patriarchal cultural norms.
“With the arrival of the European colonisers and Christian missionaries, and the imposition of Western values, the tradition of women taking their husband’s surname was introduced.
This practice reinforced patriarchal norms, where women were seen as subordinate or legally inferior (akin to a minor) to their husbands and expected to assume their identity,” the court said.
However, Mazibuko, from the University of Johannesburg, disagreed with the court that women retained their birth names and that children used their mothers’ surnames in pre-colonial times. — Sowetan
Bongani Ndlovu