2 hours ago
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Two Free State men will now use their wives' surnames after their spouses successfully challenging a section of the constitution which they say is, among other things, archaic and patriarchal.
The wives together with their husbands challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act due to alleged gender discrimination.
The first and second applicants were married in 2021 but were unable to have the husband assume the wife's surname due to department of home affairs restrictions. Their daughter carries a surname they did not intend to be their family name. The third and fourth applicants, Jess Donnelly-Bornman and Andreas Bornman married in 2022 and faced similar issues when trying to have the husband adopt a hyphenated surname combining both their names.
The two couples argued that the act and the regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality. They alleged that this amounted to discrimination based on sex and gender, violating constitutional equality rights.
They sought to have relevant sections of the act and regulations declared unconstitutional for unfairly discriminating against men in surname changes related to marriage. They argued that the current law is archaic, patriarchal, and incompatible with constitutional values of equality regardless of sex, gender, or marital status.
According to judge Joseph Mhlambi, the first couple – who have not been named – discussed the issue of the surnames when they started dating in 2014 and had always intended that the husband would assume the wife's surname should they get married.
That is because it was her biological parents' surname and symbolised her connection to them.
“They passed away when she was four years old. She has no intention of ever changing her surname, and she explained this to the second applicant at an early stage of their relationship, around 2014,” said the judge.
Regarding the second couple, Donnelly-Bornman is an only child who has stated that her maiden surname is important to her.
“Before their marriage, she informed [her husband Bornman] that she preferred to keep her maiden surname and would rather hyphenate [Bornman's] surname with her own. Both did not wish to have different surnames from each other and their children. They preferred to combine their surnames to reflect their familial unit.”
“They were married on April 2 2022 at Knysna. On completing their marriage certificate, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse,” Mhlambi said.
The Free State Society of Advocates joined the challenge as amicus curiae (friends of the court) and argued that by restricting a man's right to assume their wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men are denied a choice that is available to women.
The court had to determine whether the act and its regulations unfairly discriminated based on gender and violate constitutional equality rights.
Judge Mhlambi said he was satisfied that the two couples had established their entitlement to the relief sought and found that the provisions are inconsistent with the constitution due to gender-based discrimination.
He also declared Section 26(1)(a)-(c) of the Births and Deaths Registration Act and Regulation 18(2)(a) of the related regulations unconstitutional due to gender-based discrimination. The court also ordered the department of home affairs to amend the relevant surnames as requested.
The declaration of invalidity was suspended for 24 months to enable the president and his cabinet, together with parliament to remedy the defects by either amending existing legislation, or passing new legislation within two years to ensure that male people are afforded the right of assumption of another surname.
