Constitutional Court breaks patriarchal naming traditions

SOUTH Africa's history is marked by the interplay of colonial legacy, indigenous heritage, constitutional rights and changing traditions. On September 11, the Constitutional Court ruled against sections of the Births and Deaths Registration Act (1992) that prevented husbands from easily adopting their wives' surnames after marriage. Previously, women could change or combine surnames with little difficulty, while men faced bureaucratic obstacles.

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The court found these laws reinforced patriarchal norms and outdated assumptions about family identity. It clarified that the tradition of defaulting to the husband's surname stems from colonial, religious and Roman-Dutch law, not African custom. Historically, precolonial African societies valued both matrilineal and patrilineal naming practices. This judgment marks a move towards greater equality and inclusivity in family naming conventions.

Beyond the letter: Equality is not a zero-sum game

The Constitutional Court, in a judgment eloquently penned by Justice Leona Theron, unanimously ruled that these restrictions unfairly discriminated against both men and women, citing clear harm to families seeking to share or combine surnames.

By eliminating these provisions, the court now allows any partner to change, hyphenate or keep their surname without bureaucratic obstacles.

This decision doesn't enforce new norms but removes old barriers, letting individuals freely decide their family identity.

Facing the canon of "culture"

When South African courts reference culture, it often sparks debate, as seen in recent reactions across social media and community spaces. While some welcome greater equality, others question changes to traditions like ilobolo or see them as foreign influence.

Viewing culture as unchanging overlooks South Africa's history of adaptation precolonial societies did not strictly adhere to patrilineal surnames.

Maternal, clan or circumstance-based names were common before European colonialism imposed new norms.

Names historically carried spiritual and communal significance, rather than being fixed paternal markers - practice established by colonial authorities to enforce bureaucratic control, not indigenous tradition.