South Africa’s Surname Ruling: Between Equality and Ancestry

By Mphuthumi Ntabeni

CAPE TOWN — When the Constitutional Court declared parts of the 1992 Births and Deaths Registration Act unconstitutional this September, the ruling seemed almost modest in its phrasing. Men may now adopt their wives’ surnames. But behind that decision lies a constitutional confrontation with tradition, an invitation for communities to ask which customs survive, which must evolve, and how identity is preserved.

The Judgment, in Their Own Words

Justice Leona Theron, writing for the Court, observed that sections 26(1)(a)–(c) of the Act, and Regulation 18(2)(a), “unfairly discriminates on the basis of gender, by failing to afford men the right to assume the surname of women after marriage.” 

Most striking perhaps is this passage:

“In the case of women, the effects of this scheme are far more insidious. It is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname. It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default.” 

The Court suspended the declaration of invalidity for 24 months, giving Parliament and the President time to remedy the defect so that both spouses can enjoy the same rights in choosing surnames. 

Echoes from Earlier Jurisprudence

This ruling is not an isolated incident: it draws on a chain of constitutional jurisprudence that has imposed equality over customary norms when the two conflict.

In Bhe and Others v. Magistrate, Khayelitsha (2004), the Court rejected male primogeniture in customary succession. The Black Administration Act’s insistence that only male descendants inherit under customary law was struck down. The Court held that rule inconsistent with sections 9 (equality) and 10 (dignity) of the Constitution. 

From Shilubana and Others v. Nwamitwa (2008) comes perhaps the most direct articulation of customary law’s need for adaptability:

“The community thus sought to bring its customs and traditions in line with the new constitutional order.” 

In that case, the Valoyi community reinterpreted the rule of succession so that Ms. Shilubana, a woman, could succeed as Hosi (Chief) despite male primogeniture tradition. The Court emphasised that customary law must be flexible: a living system, not rigidly rule‐based, evolving with the values of the Constitution. 


Customary Authorities and Opposition

Not surprisingly, not all respond to the surname ruling with enthusiasm.

Professor Gugu Mazibuko of University of Johannesburg condemned the decision, saying it “disrespects African values and will cause ancestral confusion.” She particularly worried that while the law permits the choice, many might see it as a norm being imposed, and thus feel their cultural roots are being eroded. 

Zolani Mkiva, general secretary of CONTRALESA (Congress of Traditional Leaders of South Africa), warned that the ruling “undermines the cultural structures inherent in African societies, where surnames carry significant meaning regarding lineage and identity.” 

The Forum for South Africa (FOSA) expressed that the judgment is “an outright attack on South Africa’s culture, religion, and customs,” lamenting that centuries of heritage are being undermined. 

These voices tend to focus on these several related fears:

• Loss of connection to ancestors (amadlozi, amathongo, etc.), especially where clan names and isiduko matter.
• Confusion in family lineages, ceremonies, inheritances and social recognition.
• Fear of gradual “Westernization” or erosion of indigenous customs.
  

The Critical Tension: Patrilineality, Clan Names, and Surname as Identity

To understand the depth of the conflict, one must grasp how deeply names are woven into identity in many black South African communities.

• Clan names (e.g., isiduko among Xhosa, idumo, hlonipha etc.) are not simply labels. They carry moral, spiritual, relational and ritual weight. They connect the living to the dead, the present to the ancestors. They determine, for example, protocol in greetings, linkages in marriages, responsibilities in traditional ceremonies.
• Patrilineal line has been a pervasive norm: children inherit father’s clan, the surname becomes a proxy (though not always identical) for clan, and lineage is often traced through the male line.
• Surname practice, whereas the legal name (what appears on birth certificate, ID, etc.) is not the clan name, an d the two do not always align with the idea that the family surname comes via the male.

Thus the ruling doesn’t just offer a procedural change—it has symbolic and cultural implications. It introduces a possibility that lineage, identity and descent could become more negotiable. It opens the door to more couples choosing matrilineal surnames, or combining surnames, or otherwise rethinking which lines are privileged in name and memory.

Possible Paths Ahead: Conflict, Compromise, and Changing Customs

How might this actually play out, in practice and over time?

1. Limited Uptake
   Many men, especially in more traditional, rural, or deeply customary settings, may opt not to use their wives’ surnames—because social pressure, family disapproval, fear of emasculation, or simply custom will be strong. Legal possibility does not equal social norm.
2. Negotiated Practices
   Some communities may begin using double surnames, hyphenation, or adopt matrilineal lines in certain contexts (e.g., where a woman is an only child, or where her clan name carries particular prestige, or where her parents died, as was the case with Ms. Jordaan in the recent case). The new ruling will give legal legitimacy to such arrangements, making administrative, bureaucratic, and legal recognition smoother.
3. Custom Adaptation
   Drawing on Shilubana, customary leaders may feel compelled to interpret or adapt customary laws to fit the constitutional values of equality and dignity. Some may resist; others may lead change. Traditional authorities may see that refusing to adapt could make their institutions seem archaic or cause their people legal and social disadvantages.
4. Tensions and Backlash
   We can expect disputes: some families will see surname changes as a betrayal or a threat to ancestral continuity. There may be local resistance, perhaps even legal or social contestation, especially where clan names are central.
5. Which Names are Affected Most?
   People with rare surnames, or whose maternal lines have lost recognition, may embrace this change more quickly. In contrast, where clan names are strongly preserved, or where the name attaches to ritual or spiritual obligations, change may be much slower. In general I think many will just ignore the ruling and continue with their clan practices.
   

Looking Forward

The surname ruling is both small and large. Small, in that it does not force everyone to change anything, it simply lifts a restriction. Large, in that it signals the Constitution’s insistence that equality trumps custom where custom discriminates.

From Bhe to Shilubana to this latest case, the Constitutional Court has repeatedly affirmed that customary law must bend, not break, in the face of constitutional values. The relevant test is not whether custom is old, but whether it is fair, whether it violates dignity, equality, or other constitutional protections. Where customary law is unjust, or irrelevant, it will fall in the wayside quickly.

In the years ahead, much will depend on:

• how families negotiate name practices in everyday life,
• how traditional leaders engage with these changes (will they lead, adapt, resist?),
• how children’s sense of identity evolves (will clan identity shift, matrilineal claims gain visibility, etc.), and
• how law (both customary and statutory) codifies or norms evolve to reflect or counter this change.
  

Ultimately, names are anchors to ancestors, clan, family, and culture. What this ruling does is hand more people the power to choose which anchors they use. Some may forsake them; many may hold fast. But few will ignore that the ground has shifted. The good thing is that the Constitutional Court is making it clear that the rule of law for justice trumps customary or traditional practice, which in my opinion is something to be celebrated.