SA's landmark surname ruling labelled unafrican

A landmark ruling by South Africa's Constitutional Court, enabling men to assume the surnames of their wives has come under fire from traditional leaders and cultural experts for being 'disrespectful and unAfrican', notes Legalbrief. The Constitutional Court ruled  last week that section 26(1) of the Registration of Births and Deaths Act is unconstitutional as it unfairly discriminates on the basis of gender. Judge Leona Theron ruled that the Act is unfair as it fails to afford men the right to assume their wives’ surname. TimesLIVE reports that the ruling comes after two Free State women and their husbands challenged the constitutionality of the Act and won in the lower court. They then decided to take the matter to the apex court, saying the Act is, among other things, archaic and patriarchal. The first couple, Jana Jordaan and Henry van der Merwe, were married in 2021 but were unable to have the husband assume the wife's surname due to Department of Home Affairs restrictions. Their daughter carries a surname they did not intend to be their family name. The second couple, Jess Donnelly-Bornman and Andreas Bornman, married in 2022 and faced similar issues when trying to have the husband adopt a hyphenated surname combining both their surnames. The two couples argued that the Act and the regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality. They sought to have relevant sections of the Act and regulations declared unconstitutional for unfairly discriminating against men in surname changes related to marriage. They argued that the current law is incompatible with constitutional values of equality regardless of sex, gender or marital status. They then approached the Free State High Court where Judge Joseph Mhlambi ruled in their favour. The Free State Society of Advocates joined the challenge as amicus curiae and argued that by restricting a man's right to assume their wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men are denied a choice that is available to women.

The court was satisfied that the provisions are inconsistent with the Constitution due to gender-based discrimination, which negatively affected both men and women. In the case of men, they are deprived of the ability to take their wives’ surnames if they so wish. ‘In the case of women, the effects of this scheme are far more insidious. It is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname. It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default,’ the ruling stated, according to TimesLIVE. The court found that this limitation of equality cannot be sustained under section 36 of the Constitution. Section 26(1)(a)-(c) of the Births and Deaths Registration Act and regulation 18(2)(a) of the related regulations were declared unconstitutional. The declaration of invalidity was suspended for 24 months to enable the President and his Cabinet, together with Parliament, to remedy the defects by either amending existing legislation, or passing new legislation within two years to ensure that male people are afforded the right of assumption of another surname.

The ruling has unleashed anger from tra­di­tional lead­ers across SA who say the judg­ment under­mines African cul­tural prac­tices, erodes fam­ily iden­tity and threatens suc­ces­sion norms. The Daily Dispatch reports that while equal­ity advoc­ates hailed the rul­ing as a mile­stone for gender par­ity, tra­di­tional lead­ers described it as ‘dis­gust­ing’, ‘anti­-African’ and a recipe for ‘chaos and con­fu­sion.’ Crit­ics say it imposes West­ern ideas on African soci­et­ies where names are tied to blood­lines, iden­tity and lead­er­ship suc­ces­sion. Con­tralesa Pro­vin­cial Chair Nkosi Mwelo Nonkonyana said tra­di­tional lead­ers had anti­cip­ated the out­come ever since the Con­sti­tu­tion was adop­ted. ‘In terms of our cus­tom, we pay lobola for our wives and in some cases, com­munit­ies do so for us. Poly­gam­ous mar­riages are part of our cul­ture. The ques­tion may arise as to whose sur­name a man with more than one wife should assume. Whose sur­name must the chil­dren of such a mar­riage assume? The judg­ment has implic­a­tions for our cul­ture and we will engage with Par­lia­ment to make sure that our entrenched norms and val­ues are not oblit­er­ated by the effect of the judg­ment,’ Nonkonyana said. The OR Tambo Local House of Tra­di­tional Lead­ers con­vened a spe­cial sit­ting on Fri­day where mem­bers denounced the judg­ment. Senior Abathembu Leader and Attor­ney Nkosikazi Nob­hongo said the judg­ment is a ‘recipe for chaos and con­fu­sion’.

Cultural expert Professor Gugu Mazibuko from the University of Johannesburg says the ruling disrespects African values and will cause ancestral confusion, reports IoL. ‘For me, this ruling is looking down upon African values. Yes, I do understand that there is a “can” in this ruling, which means it’s optional, not compulsory. But we know that we are living in trying times,’ said Mazibuko . She stressed that identity issues are key, particularly in African communities. ‘So now, rulings like these come at a time whereby you find that we are trying to restore our identities and our cultures, and then this can be misinterpreted as a must,’ she said. Despite some celebrating the ruling as a progressive step, Mazibuko said she was concerned. ‘Well, people cannot react the same way, and I think we need to respect that, because this is a democratic South Africa, a multicultural society. But at the same time, let us not forget that this is African soil. So the decisions that are being taken, they will have a huge impact,’ she said. ‘They will change how things are done in the African way, you know. Because we are now adopting everything that is taking place in other Western parts of the world.’ Social media has been flooded with mixed reactions. While some welcomed the move, others voiced concerns that it would interfere with the cultural practice of paying lobola.

Even though the ruling has ignited fierce debate, particularly among black men and women who argue it undermines 'African culture', Fred Khumalo argues in a News24 piece that culture is dynamic and often shaped by historical impositions, not immutable truths. Opponents, vocal on social media and radio, claim the ruling defies African cultural norms, particularly the tradition that a man's surname is non-negotiable because he pays ilobolo. Khumalo challenges this, asserting: 'This line of thinking, fallacious at best, overlooks the simple fact that culture is dynamic; it evolves. Some horrible things have been done in the name of culture.' He cites historical practices, such as killing twins or people with albinism for supposed luck, to illustrate how cultural norms can shift. Khumalo argues that surnames and ilobolo, often cited as cultural cornerstones, have been influenced by colonialists. 'Let’s look at these two things: surnames and the concept of ilobolo. First of all, if we are to be culturally accurate, we have to remember that as Africans we never used surnames until white settlers moved to our shores, subjugated us and forced their world view on us,' he writes.

Surnames, he notes, were imposed by colonial rulers for administrative purposes, not as cultural expressions. Similarly, ilobolo was altered by colonial intervention, he writes on News24. 'In 1850, the colonialist and so-called administrator of native affairs, Theophilus Shepstone, ruled that only 11 cattle could be exchanged in the marriage practice of ilobolo,' Khumalo explains, arguing this created debt and forced Africans into the colonial labour market. 'Shepstone’s intervention changed ilobolo from an ancient ritual of gift-giving to a more regulated, financially driven exchange. This bastardised imposition is now perceived by many as Zulu culture,’ he explains. Khumalo concludes that cultural practices are not static but evolve with society or at the whim of those in power. 'I therefore have no qualms with men taking their wives’ surnames if they so choose. It does not make them lesser men. And it certainly does not insult anyone’s culture. For what exactly is culture?' he writes.