- The court traced the rule to colonial and Roman-Dutch legal traditions.
- It found that the law entrenched patriarchal gender roles and erased women’s identities.
- The court stated it was inconsistent with African customary naming practices and constitutional values.
The Constitutional Court ruled that South Africa’s surname law, which required women to change their surnames upon marriage, was a remnant of colonial and patriarchal thinking. It violated women’s equality and dignity.
In a unanimous decision in Jordaan and Others v Minister of Home Affairs and Another, Justice Lorna Theron explained that section 26(1)(a)-(c) of the Births and Deaths Registration Act upheld harmful gender stereotypes introduced through colonialism, religion, and Roman-Dutch law, rather than being rooted in African culture.
Colonial origins of the surname rule
Justice Theron explained that historically, in many African cultures, women did not change their surnames when they married. Children often took their mother’s clan name. This changed during colonial times when European settlers and Christian missionaries imposed the Western tradition that wives adopt their husbands’ surnames.
The court noted that this colonial practice positioned women as legally subordinate to their husbands, reinforcing the idea that they were similar to minors. The ruling linked this to the Roman-Dutch concept of marriage cum manu, where a woman joined her husband’s family as if she were his daughter, losing all ties to her own family. Under English common law, similar patriarchal principles like “coverture” rendered married women legally invisible by placing them under their husband’s legal authority.
Although South Africa has since abolished the marital power regime that enforced these ideas, the surname provisions remained. “This practice reinforced patriarchal norms where women were seen as subordinate or legally inferior to their husbands and expected to assume their identity,” Justice Theron wrote.
A tradition out of step with African custom
The court emphasised that this colonial tradition conflicted with African customary practices. Evidence presented to the court showed that many precolonial African societies allowed women to keep their birth names and recognised the maternal clan name as central to identity.
In contrast, the colonial surname rule “erased women’s identities” by demanding they abandon their family names and symbolically shift into their husband’s families. This stripped women of their heritage and reinforced the idea that men are the heads of households, with women expected to conform to male identity.
Justice Theron described the symbolic effect as significant: “The symbolic consequence is that women’s identities are subsumed into their husbands’ families after marriage. This inevitably strengthens the notion that the husband is the head of the household.”
Entrenching patriarchal gender norms
The ruling concluded that the surname law upheld systemic gender inequality by treating women’s identities as fluid and secondary while men’s identities were treated as fixed and primary. It reinforced the view that men are the central figures around whom families are organised.
This gender hierarchy conflicted directly with the constitutional vision of non-sexism and equality. Justice Theron stated, “The law rests on patriarchal assumptions about how families should be organized” and “removes the ability for spouses in heterosexual relationships to make personal and meaningful choices for their family.”
She added that dismantling these colonial and patriarchal norms is essential for achieving true equality, as required by Section 9 of the Constitution: “The Constitution’s vision of non-sexism requires a concerted effort to eliminate these norms to uphold the constitutional values of freedom, dignity, and equality for all.”
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