In a landmark decision that has been widely described as historic, South Africa’s Constitutional Court has officially ruled that men now have the legal right to adopt their wife’s surname after marriage, striking down an old law that had previously prohibited them from doing so. This development marks a significant turning point in the country’s journey toward gender equality and the dismantling of laws inherited from the colonial era.
The court declared that the previous restriction, which was entrenched in the Births and Deaths Registration Act, amounted to gender-based discrimination and was inconsistent with the values of equality enshrined in South Africa’s post-apartheid Constitution. The justices described the outdated legislation as a relic of colonialism and patriarchal legal traditions, stressing that it unfairly privileged men over women by denying them a personal choice that women had long been able to exercise.
The ruling came after two couples challenged the law in separate cases. One of the men, Henry van der Merwe, was prevented by authorities from taking his wife Jana Jordaan’s surname when they attempted to register their marriage. In another case, Andreas Nicolas Bornman sought to hyphenate his surname to include that of his wife Jess Donnelly, but was blocked under the same discriminatory legislation. Both couples argued that the restriction violated their constitutional rights to equality and dignity, and the court ultimately agreed with their position.
The Constitutional Court upheld an earlier ruling by a lower court, affirming that the contested section of the law was unconstitutional and must be struck down. As a result, Parliament has now been tasked with amending the Act and its accompanying regulations to ensure they comply with the judgment and reflect modern standards of equality. Until then, the court’s decision ensures that men are free to legally assume their wife’s surname without hindrance.
In its judgment, the court drew attention to the fact that many African cultures historically allowed women to keep their maiden names and even encouraged children to carry their mother’s clan name, highlighting that the imposed European custom of wives taking their husband’s surname only became widespread after colonial occupation and the imposition of Roman-Dutch legal practices. According to the judges, this history made it clear that the old law was not only discriminatory but also out of step with South Africa’s indigenous cultural traditions.
The court also observed that although South Africa has made remarkable progress in breaking down gender inequalities since the fall of apartheid, remnants of colonial-era laws and patriarchal practices have continued to exist in family law and other social systems. Eliminating these discriminatory provisions, the judges noted, is essential to achieving true equality.
Importantly, the government itself did not oppose the application. Both the Minister of Home Affairs, Leon Schreiber, and the Minister of Justice, Mamoloko Kubayi, agreed that the law was outdated, discriminatory, and incompatible with the Constitution. Their support for the couples’ challenge further strengthened the case for striking down the statute. The Free State Society of Advocates also intervened in favour of the applicants, arguing that denying men the right to take their wife’s surname perpetuated gender stereotypes and entrenched inequality.
The ruling has been celebrated by gender rights advocates, civil society organisations, and ordinary South Africans who see it as a victory for fairness, equality, and freedom of choice within marriage. By allowing men the same rights as women in choosing surnames after marriage, the judgment represents a dismantling of one of the subtle but significant ways in which patriarchal norms were reinforced through law.
With this groundbreaking development, South Africa has taken yet another progressive step in reshaping family law and affirming the principle that marriage is a union of equals. The decision is expected to have wide-reaching implications for identity, culture, and gender equality, setting a precedent that may inspire other nations across Africa and beyond to revisit similarly outdated laws.
Observers say the ruling is not just about surnames, but about dismantling systems of inequality that have lingered for generations. For many, it represents hope that South Africa will continue to evolve into a society where men and women truly enjoy equal rights in every aspect of their personal and social lives.