- Court ruling lets men adopt wives’ surnames, challenging colonial patriarchy.
- Surnames shown as state tools of control, not heritage or biology.
- Decision reframes identity as personal choice over state imposition.
In a landmark ruling that supports equality, the Constitutional Court has declared that men may legally adopt their wives’ surnames. This decision strikes down old and discriminatory parts of the Births and Deaths Registration Act. It deserves celebration as a victory for human dignity and a challenge to patriarchal norms. But to truly understand the significance of this judgment, we must look beyond gender and ask a more fundamental question: what is a surname?
The answer is both complex and simple: a surname is a human invention, a relatively recent idea in history, and one of the most powerful tools of government ever created. It relates far less to biology and much more to bureaucracy, control, and the often-violent exercise of power. Therefore, the court’s ruling is not just about changing names; it is about reclaiming personal power within a system that began with the rise of the modern state and was harshly refined through colonialism and apartheid.
This article argues that the Constitutional Court ruling addresses state power rather than transforming ‘our’ culture, because a surname is a product of administrative control, not biology or heritage. In South Africa, surnames historically served colonial and apartheid governments to monitor, classify, and control people. Thus, the court’s judgment reaffirms state power while allowing the state to tweak one of its most important administrative creations.
The Westphalian forge: Crafting populations from people
Before the 17th century, when the Westphalian model of the sovereign state took shape, most people in Europe used a single name, sometimes with a descriptor like “John the Smith” or “Mary of the Hill.” As states gained power, they needed a way to tax, conscript, and govern their populations. The answer was mandatory and hereditary surnames.
As James C Scott explains in Seeing Like a State, pre-modern states were largely ‘blind’ because they knew very little about their subjects, their wealth, or their land. Thus, the main goal of the modern state was to make society understandable, simplifying complex social realities into administrative categories. The idea of a fixed surname was a brilliant move in this endeavor.
The adoption of surnames sped up due to key historical events like the Council of Trent (1545–1563), which required Catholic parishes to keep strict baptismal records, ensuring the consistent recording of family names. This established a continent-wide system of registration that worked closely with secular authorities.
This change was not a natural cultural evolution but a careful administrative decision. As Michel Foucault noted, this marked a shift from the sovereign's power to take life to a new power to manage life, treating populations as biological resources. Surnames became the main identifiers in this extensive biopolitical database, crucial for tracking birth rates, health, migration, and wealth for taxation and conscription.
The Peace of Westphalia in 1648, which established the modern concept of the sovereign nation-state, pushed this trend forward. The Westphalian state, with its defined borders and central authority, needed a way to manage its population. Surnames served as an excellent administrative tool, turning abstract individuals into quantifiable subjects. While large amounts of data have lessened the need for surnames in public administration, they have been replaced with identity numbers.
Today, while public administration increasingly relies on identity numbers, fingerprints, and digital records, surnames still hold strong symbolic and social meaning. They continue to indicate state-engineered lineage, community, and belonging, holding significance beyond bureaucratic needs. Even as their practical roles in governance fade, surnames remain strong markers of personal and collective identity within state authority, connecting historical control with modern fights for recognition and dignity.
Colonialism’s bureaucratic export: The imperialism of the ledger
This European invention did not stay within its own borders. It became one of colonialism’s most harmful exports. Empires needed to govern vast, unfamiliar territories, so they imposed their bureaucratic systems on colonized societies. Surnames became a key instrument of this administrative violence. In the Americas, enslaved Africans lost their original identities and received surnames that reflected ownership, geography, or arbitrary names.
To understand its specific impact in South Africa, we need to move beyond generalities and consider the harsh realities of its enforcement.
As Stembele Johnson's research emphasizes, “surnames are not of African origin; they came from the West. But due to colonialism, surnames were forced upon African people.” This enforcement was not just administrative; it was also a significant act of violence, starting with early colonial encounters. The system of inboekelinge illustrates this. Historians like Susan Newton-King document how inboekelinge were indigenous Khoi and San children forcibly placed in settler households after raids or under questionable “apprenticeship” contracts. This marked a system of bonded labor and a thinly veiled form of slavery.
The original names of Khoi and San children were erased and replaced with Dutch or Afrikaans surnames, often those of their masters, to overwrite their lineage and incorporate them into settler identity. Robert Shell’s Children of Bondage records how slaves at the Cape of Good Hope were renamed upon arrival: Christian first names enforced conversion, while surnames like ‘van Bengale’ or ‘van Mosambique’ reduced individuals to geographic labels. Others received the surnames of their masters or calendar names like ‘September’ or ‘October,’ which continue to appear in Coloured communities today.
When the Voortrekkers migrated northward, they brought the inboekelinge system with them. This system involved capturing or coercing African children from communities raided during confrontations, who were then placed in Boer households as bonded laborers. Stripped of their names and traditions, these children assimilated into settler culture, learning Dutch or Afrikaans, adopting European surnames, and performing essential labor for the expansion of the Voortrekker frontier. These former slaves later merged into the native population with assigned surnames.
In both the Highveld and the Cape, the act of ‘booking in’ children effectively stripped them of their kinship and identities, forcing them into a settler context. Achille Mbembe describes this process as 'necropolitics': the power to decide who may live, die, or be remembered. Colonizers erased belonging through names, which were not just symbolic. Pamela Scully notes that freed slaves had to keep these imposed surnames, embedding erasure into property law and passing it on to descendants.
The machinery of control: Law, missionaries and apartheid bureaucracy
Colonial authorities quickly recognised the power of naming in governance. As Mahmood Mamdani argues in Citizen and Subject, the colonial state ruled by defining and fixing identities. In South Africa, this was done through registries of births, baptisms, marriages, and deaths. Entering these systems required European-style names.
Missionaries played a significant role. Individuals like Elizabeth Elbourne and Clifton Crais reveal how mission baptisms required adopting Christian names, which were then recorded in church registers that also served as state records. Indigenous systems of clan naming (iziduko) and praise poetry were excluded from this documentation. The law only acknowledged what it recorded, making entire systems of African identity invisible.
Under British colonial rule, pass laws and taxes enforced fixed surnames, formalized by the 1927 Native Administration Act, which made chiefs responsible for providing names for official records. Names became crucial for surveillance, creating racial categories through bureaucratic records. Apartheid refined this system: the Population Registration Act (1950) and Group Areas Act used surnames to indicate race, while missionary spelling errors became binding, leaving many, as Stembele Johnson finds, unable to explain their own names.
Registration, dignity and the constitutional reckoning
This history brings us to the complex heart of the South African state and its Constitutional Court. Like all modern states, its legitimacy relies on registration. Through Section 8(2) of the Constitution, it acknowledges two kinds of legal persons: the homo sapiens registered at the Department of Home Affairs and the persona ficta (like a company) registered at the Department of Trade and Industry and Competition. This distinction echoes the ancient legal idea of the King’s Two Bodies explored by historian Ernst Kantorowicz: the natural body of the citizen and the eternal body politic of the state both exist only through inscription into the ledger.
The state engages with its human population through the legal identity created at birth registration. The surname is crucial to this legal identity. The old Births and Deaths Registration Act enforced a specific gendered order. It assumed a fixed, patriarchal lineage as the default setting of the state’s database, a direct legacy of colonial and apartheid times. Women were treated as subordinate, but this had nothing to do with culture. It meant they were always expected to take on a man’s surname.
The Constitutional Court’s ruling is a vital intervention. It is not just a policy change but a significant adjustment in state power. It states that the state’s administrative tool—shaped by Westphalian governance and hardened by colonialism—cannot be used to uphold outdated social norms. It challenges the very logic of the system, insisting it must support dignity and equality, not merely bureaucratic convenience.
It recognises, as Johnson’s research indicates, that most surnames “are said to be names of forefathers (ancestors), and there is little to no connection to femininity in these surnames.” The court’s decision starts to fix this gendered imbalance, offering a way to break the patrilineal constraints that surnames have historically enforced. By intervening at the point of registration, the ruling ensures this power is used equally, allowing the law to help the state’s administrative system.
Reinvention as liberation?
Critics may label this as a threat to tradition. But this history shows that mandatory surnames were a state-driven break from earlier, more fluid traditions. Johnson points out that “if you look at the census from 1880 to 1945, most of those surnames don’t exist today. This means we create them as we go.” The fact that people today freely change names online and that surnames frequently change, with new clans (iziduko) forming, is not a sign of social decline but evidence of the very artificiality and flexibility of this concept.
The Constitutional Court has done more than promote gender equality; it has shown that tools of state control can be reclaimed for personal freedom. The court strengthens justice without weakening the state by allowing individuals to choose their surnames. Names, whether reflecting African traditions or marital equality, now belong to individuals, changing an oppressive bureaucratic tool into a mark of dignity and self-determination.
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