A South African traditional wedding. Azekhoria Benjamin/Wikimedia Commons, CC BY-SA

A unanimous Constitutional Court ruling has sparked fierce controversy by affirming the right of South African men to adopt their wives’ surnames if they wish to.

It emerged from a lawsuit against the Department of Home Affairs by Henry van der Merwe, who was denied the legal right to take the surname of his wife, Jana Jordaan, and Andreas Nicolas Bornman, who could not hyphenate his surname to include the surname of his wife, Jess Donnelly-Bornman. They asked the judges to confirm an order of constitutional invalidity granted by the High Court in Bloemfontein.

The Constitutional Court affirmed that section 26(1) of the Registration of Births and Deaths Act of 1992 violates gender equality and reinforces patriarchy. It suspended its invalidation and gave parliament two years to amend it.

My research specialises in the interaction of legal systems, including their effect on customary marriages. I have also served as an advisor to the South African Law Reform Commission. In my view, the judgment puts customary law squarely in the spotlight.

In South Africa, statutory and customary laws exist side by side, but their relationship is unequal because statutory laws regulate the validity of customs. This creates tension between the two because judges interpret customs from a western viewpoint, which often annoys people who observe customary laws.

Although the Constitutional Court judgment rightly seeks to promote gender equality, it opens another chapter in the struggle between customs and constitutional rights.

Controversy

Even though men can choose whether or not they want to take their wife’s surname, the judgment has generated intense controversy. Notably, the Congress of Traditional Leaders of South Africa condemned it as “disgusting, anti-African” and a recipe for “chaos and confusion”. In their view, it undermines indigenous values, erodes cultural identity, and threatens succession norms in traditional communities.

Read more: Understanding the relevance of African customary law in modern times

From a legal perspective, the ruling throws up some practical challenges in polygamous marriages and royal succession. For example, how does a man choose a surname from one of several wives? Can a king disrupt the royal naming system by switching his surname? Then there’s the intriguing issue of bride-wealth (ilobolo).

Recognition of Customary Marriages Act

Section 1 of the Recognition of Customary Marriages Act defines bride-wealth as “property, whether in cash or in kind, that a prospective husband or the head of his family undertakes to provide to the head of the prospective wife’s family in consideration of a customary marriage”.

Although the act doesn’t explicitly make it compulsory, bride-wealth is central to the validity of customary marriages. It legitimates unions between families and confers rights on children to bear the name of their father. Since bride-wealth confers paternal name rights, a woman might have to pay bride-wealth for her husband to take her surname. This could require an amendment of the act.

But it may not be necessary to amend it. There’s a sense in which the surname judgment tests people’s awareness of the need for cultural change. So, let us examine surnames as a colonial import in Africa.

Is marital surname even customary law?

The practice of an African wife taking her husband’s surname is not indigenous. In fact, surname usage is a relatively modern phenomenon. It emerged in Europe in the 1500s and 1600s. Europeans imposed it on Africans to streamline their colonial administration and consolidate control over their subjects.

Under Europe’s patriarchal doctrine of coverture, a married woman’s husband controlled her assets and represented her legally. In South Africa marital surnames spread after receiving backing from the Aliens Act of 1937.

Delivering the new surname judgment, Justice Leonie Theron stated:

This practice reinforced patriarchal norms, where women were seen as subordinate or legally inferior (akin to a minor) to their husbands and expected to assume their identity.

In Africa, the naming process embodies individual or group social experiences, religion, values, statuses, roles, and personality. Originally, men and women referred to themselves as the child of someone, without emphasising surnames.

Research shows gender flexibility in many African communities, with women retaining their birth names after marriage. Indeed, children could take their mother’s clan name.

Read more: South African marriage ruling is a win for divorcees and surviving spouses: it guides the sharing of their assets

The European origin of surnames calls into question the resistance to cultural changes. Did marital surnames transform into African customary law? Should colonial changes be considered customary law? Research has not resolved this later question.

Critics say the surname judgment imposes western ideas on traditional societies. But if Africans have accepted changes from colonialism (and globalisation) as customary law, then they should accept men taking their wives’ surnames. After all, they have embraced Christianity and western forms of education, technology, and (personal) income.

Any argument that surnames underpin bloodlines, identity and leadership succession should recognise that marital surnames are a colonial import. It’s my view that some customary practices are no longer suited to modernity and need to change with the times.

Nonetheless, the judgment reflects longstanding tensions between customary laws and constitutional rights.

Custom versus constitution

In South Africa, disparate legal systems such as Roman Dutch law, English common law, customary laws and religious personal laws coexist. The constitution, adopted in 1996, recognises this legal pluralism by supposedly giving equal status to these systems.

So, the judgment should not apply to Africans who live by customary laws. This is what genuine autonomy in normative co-existence – deep legal pluralism – means. But this is not the case.

The constitution relies on a bill of rights to regulate the validity of customary laws. This regulation resonates with regulation during colonialism, when European judges used the “repugnancy test” to prohibit customs they deemed incompatible with statutory laws and notions of natural justice, equity, and good conscience.

Here’s the problem: judicial development of customs focuses on human dignity, equality and non-discrimination, which have different meanings in African culture. Because of their training, judges tend to interpret these rights in a Eurocentric manner that fails to accommodate cultural differences.

Read more: South Africa's new Marriage Bill raises many thorny issues - a balancing act is needed

As I argued previously, the proposed Single Marriage Bill demonstrates how statutory laws force western culture on Africans by imposing a uniform framework on every marriage, including a customary one.

Going forward

Judges must be careful how they handle struggle between legal systems to avoid offending the dignity of people who observe customary laws. Liberal law reforms risk erasing cultural and religious diversity by standardising behaviour.

Read more: Royal Zulu divorce drama: South African traditions are having to change with the times

Ultimately, customary rites, polygamous unions and initiation ceremonies may lose their cultural flavours. This would dilute the uniqueness of social life in traditional communities.

Judges should avoid marginalising traditional leaders and faith-based institutions. Doing so undermines legal pluralism in South Africa’s multicultural nation.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Anthony Diala, University of the Western Cape

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Anthony Diala works for the University of the Western Cape. He previously received funding from the National Research Foundation of South Africa. He serves on an Advisory Committee of the South African Law Reform Commission. However,he writes in a personal capacity. His views here do not necessarily represent the views of these organisations.