Commission for Gender Equality welcomes 'progressive' ruling that husbands can now take wives’ surname

PATRIARCHY has exalted the position of men in society and insulated them from the harsh effects of sexism and gender-based discrimination, remarked the Constitutional Court in a landmark ruling that struck down part of the Births and Deaths Registration Act as unconstitutional, specifically the section that made it difficult for men to take their wife’s surname.

“This does not mean that men cannot and do not suffer from the effects of patriarchy. The inability of husbands to assume their wives’ surnames removes their right to make choices pertaining to their own identity. Further, it prevents them from determining how to structure their familial unit.  However, the provision (of the Births and Deaths Registration Act) is at the same time demeaning to women, since it conveys that only the man’s surname deserves to serve as the family surname.  The man’s surname is thereby given a superior status to that of the woman’s,” reads the judgment delivered by Justice Leona Theron. 

In the case of the first and second applicants Jana Jordaan and her husband Henry van der Merwe, prior to their marriage, they had agreed that he would assume the surname of his wife. 

However, upon registration of the marriage, the Department of Home Affairs (DHA) told them that it was not possible. 

The couple also have a child whom they would like to bear the “Jordaan” surname.  

In the case of the third and fourth applicants Jess Donnelly-Bornman and Andreas Nicolaas Bornman, the wife wanted to retain her surname to preserve familial ties with her biological parents as an only child and the couple intended to have their surnames reflected as “DonnellyBornman”.

They were advised by the DHA that only a female spouse may amend her surname, not a male spouse. 

The applicants then instituted legal proceedings in the Free State High Court in Bloemfontein, in which they sought, among others, an order declaring the impugned provisions of the Act and Regulations unconstitutional to the extent that they discriminate on the grounds of gender.

The High Court ruled in their favour. The couples then approached the Concourt to have the decision officially confirmed.

In their submissions, the Minister of Home Affairs Leon Schreiber and the Minister of Justice and Constitutional Development, Mmamoloko Kubayi did not oppose the confirmation of the declaration of unconstitutionality.  

“They agree with the applicants that the impugned provisions in the Act are rooted in colonialism and patriarchal norms.  The respondents concede that the Act should be amended to reflect constitutional values and agree with the proposal made by the applicants that the order of constitutional invalidity be suspended and Parliament be granted a two-year period within which to remedy any such defect,” court papers read. 

The apex court suspended its declaration of invalidity for 24 months to give Parliament time to remedy the issue, either by updating the current law or passing a new one, so that everyone can have the right to take on a different surname.

The Commission for Gender Equality (CGE) has welcomed the ruling, with spokesperson Javu Baloyi saying: “The judgment is progressive in nature. We are grateful that someone saw a gap and, henceforth, seized the opportunity to legally challenge it. Gender equality is everyone’s business; as such, every effort by like-minded institutions and gender activists in ensuring that gender equality is realised is most welcome. 

“It is critical that anything that is seen as a hindrance towards the attainment of gender equality should be challenged. This case in point sought to do that. Patriarchal norms and values that are not in line with the Constitution of the Republic of South Africa have to be challenged. The judgment will also be helpful to the LGBTQIA+ persons as it addresses some of the challenges they had in changing their surnames to those of their partners.” 

The Department of Home Affairs (DHA) has yet to clarify the next steps following the ruling and did not respond to requests for comment on the matter by deadline.

Cape Times