The Constitutional Court said the old rule was a “colonial import” that amounted to gender-based discrimination and did not reflect modern South Africa’s values.
The decision came after two couples challenged the law.
Henry van der Merwe had been denied the right to take the surname of his wife, Jana Jordaan, while Andreas Nicolas Bornman could not add Donnelly, his wife’s surname, to create a hyphenated surname.
The court ruled that this violated the equality rights in South Africa’s constitution, which was adopted after the end of apartheid in 1994.
It gave Parliament and the President two years to amend the Births and Deaths Registration Act and its regulations to bring them in line with the Constitution.
The Constitutional Court noted that in many African cultures, women traditionally kept their birth names after marriage, and children often took their mother’s clan name, but this changed with the arrival of European colonisers and Christian missionaries, who introduced Western naming customs.
Justice Leona Theron, who delivered the judgment, said the restriction “served no legitimate government purpose” and unfairly discriminated based on gender.
She said South Africa had made “significant advancement” in gender equality, but outdated laws and practices that promote “harmful stereotypes” were still in place.
Neither the Minister of Home Affairs Leon Schreiber nor the Minister of Justice Mamoloko Kubayi opposed the case. Both agreed the law was outdated.
The Free State Society of Advocates supported the couples in court, arguing that denying men the choice to take their wife’s surname reinforced stereotypes and gave women a right that men did not have.
