Cultural experts have lashed out at the Constitutional Court ruling giving the green light for husbands to assume the surnames of their wives.
The unanimous judgement was handed down by Justice Leona Theron on Thursday at the Constitutional Court in Braamfontein, Johannesburg.
Theron said Section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992 is unconstitutional as far as preventing men from assuming their wives’ surnames.
The Act unfairly discriminates on the basis of gender by failing to afford men the right to assume the surname of women after marriage, Theron explained.
The applicants in the matter were Jana Jordaan, her husband Henry van der Merwe, Jess Donnelly-Bornman and her husband Andreas Nicolaas Bornman.
The respondents were the Minister of Home Affairs and the Minister of Justice and Constitutional Development.
In the judgement, Theron said prior to their marriage, Jordaan and van der Merwe had agreed that van der Merwe would take the surname of Jordaan. Upon registration of their marriage, the pair was advised by the Department of Home Affairs that it was not possible for the husband to assume the wife’s surname.
Violates African traditions
Cultural expert Professor Gugu Mazibuko from the University of Johannesburg criticised the Constitutional Court’s ruling, describing it as “un-African and selfish.” She argued that surnames carry deep cultural significance in African traditions.
“In our culture, a man begins by proposing marriage, followed by lobola negotiations. The woman is then introduced to the man’s family, including his ancestors. In Xhosa culture, it is even more profound because a woman not only changes her surname but is also given a new name,” Mazibuko explained.
She warned that the ruling undermines these traditions and could worsen social challenges. “This decision will negatively affect children. Traditionally, when a woman marries, children automatically take the father’s surname. Now, with this ruling, whose surname will they use? We are already facing issues with undocumented foreigners, and this decision will only complicate matters. I believe the Court did not fully apply its mind when reaching this conclusion,” she said.
Meanwhile, Professor Nogwaja Zulu from the University of KwaZulu-Natal said: “This decision should be celebrated. It is neither good nor bad; it simply offers choice.
“Those who wish to preserve their cultural practices can continue to do so, while others may choose to use their wife’s surname. If the highest court believes this serves our people best, then so be it,” he said.
Zulu added that the public has had to accept several court decisions that many view as “un-African”, and this ruling is just another example.
Last name a spiritual matter
Founder and chairperson of the Kara Heritage Institute Mathole Motshekga said the judgement is not in line with African culture and religion.
“It is unfortunate that our country educates our people on everything in the world except on history and heritage. The issue of the naming of African children is a spiritual issue.
“When the husband takes the surname of the wife, it means spiritually and culturally the children in that family are going to use the surname of the wife and not the husband.
“The lineage in African culture is determined by the father and/or the husband. It is a spiritual matter. In terms of the Bill of Rights, it [African culture and religion] must be respected because the Constitution recognises all the cultures and traditions and protects them.
“And now, to say in the African community, the husband must take the surname of the wife, that means the Constitutional Court has applied Western culture, which is not in line with African culture and religion,” said Motshekga.
“Therefore, with respect, this decision violates the Constitutionally guaranteed right of African people to culture and religion. So, as the Kara Heritage Institute, with due respect, we cannot agree with that decision of the Constitutional Court. It goes to the heart of African spirituality, and African spirituality is guaranteed by the Bill of Rights. A court which must enforce the Bill of Rights, for it to take a decision which violates the Bill of Rights, we find difficult to understand and process that.
“In the long term, the judgement is going to create a spiritual and cultural crisis among African children. Therefore, it is not conducive to national unity and social cohesion… The parties (applicants) in this case were white people. The problem is that that judgement may apply to white people, but it is going to impact on the African majority in the country. Amongst Africans, the issue of naming is a spiritual and cultural matter. So, this would be a violation of African rights through the back door.
“The judgement is unfortunate because unfortunately the ConCourt is the highest court ... The government should amend the law because the judgement is violating the Constitution itself,” said Motshekga.
