The recent Constitutional Court judgment allowing men to legally assume their wives' surnames undermines African cultures, traditions and spirituality as it affects family lineage which usually follows the paternal line.
This is the view of expert Prof Gugu Mazibuko after the judgment on Thursday, which stated that the South African law, by allowing only women to amend their surname, committed unfair gender discrimination in contravention of international law principles.
The case first came before the Free State High Court when two couples challenged the provisions of the Birth and Deaths Registration Act.
They argued the provisions were unconstitutional and unfairly discriminates on the grounds of gender by failing to afford a woman the right to have her spouse assume her surname and by failing to afford a man the right to assume the surname of the woman after marriage.
Jana Jordaan, who is married to Henry van der Merwe, agreed before their marriage that Van der Merwe would assume Jordaan's surname to preserve her familial ties to her deceased biological parents.
When registering the marriage, the couple was advised by the home affairs department it was not possible for Van der Merwe to assume his wife's surname.
Jess Donnelly-Bornman, who is married to Andreas Nicolaas Bornman, also wished to retain her surname to preserve familial ties with her biological parents as an only child. The couple opted for their surnames to be reflected as “Donnelly-Bornman”. They were advised by the department that only a female spouse may amend her surname, not a male spouse.
After the Free State High Court declared the sections unconstitutional, the case was brought to the Constitutional Court to confirm the order of constitutional invalidity.
In its judgment, the court said in many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name.
“There are several historical and cultural authorities that suggest this as evidenced by traditional African cultures, customary law in many African countries, colonial records and accounts from the 18th and 19th centuries, missionary records from the same period and oral tradition.”
The court also said in parts of Africa, the tradition of a woman assuming her husband’s surname was rooted in colonialism, religion and patriarchal cultural norms.
“With the arrival of the European colonisers and Christian missionaries, and the imposition of Western values, the tradition of women taking their husband’s surname was introduced. 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,” the court said.
However, Mazibuko, from the University of Johannesburg, disagreed with the court that women retained their birth names and that children used their mothers' surnames in pre-colonial times.
“That is a lie. Because in the precolonial era, even now, when a woman is married, at the husband's homestead, that woman is referred to by her maiden name.”
Mazibuko said when the woman is married into the new family, she is also introduced to the ancestors of that family.
“The woman's children are introduced, through rituals that are performed. When that is done, the ancestors of the man are the ones called when anything is taking place.”
She said in the case of children who used their mother's surnames it was when they were born out of wedlock and lived with the maternal family.
She said the new judgment is likely to destroy the family lineage, usually traced through the fathers' side.
“One is asking: have they (the court) considered children? Because now the man is married to a woman's surname, what about the children? Are they going to use the woman's surname as well? What happens when the couple divorces? What about their lineage? What about polygamous families? Are they going to use the name of the first wife,” Mazibuko asked.
She said this judgment was disappointing as it was happening on African soil where there were complexities when it came to family structures.
“A surname is not just a label. You talk about the clans, ancestors, the genealogy, the customs and traditions. It is kind of complicated when it comes to African families. It is not just as simple as a European family setting.”
Zolani Mkiva, general secretary of the Congress of Traditional Leaders of South Africa, said the ruling was destructive and would destabilise families, communities and societies.
Mkiva said in terms of lineage of families, a woman marries into the family of a man.
“The bloodline is defined in that context. That dates back centuries, from the beginning of time,” Mkiva told SABC.
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