By Nco Dube | 11 September 2025

Redefined Family Names

South Africa’s history is marked by the interplay of colonial legacy, indigenous heritage, constitutional rights, and changing traditions. On 11 September 2025, the Constitutional Court ruled against sections of the Births and Deaths Registration Act (1992) that prevented husbands from easily adopting their wives’ surnames after marriage. Previously, women could change or combine surnames with little difficulty, while men faced bureaucratic obstacles.

The Court found these laws reinforced patriarchal norms and outdated assumptions about family identity. It clarified that the tradition of defaulting to the husband’s surname stems from colonial, religious, and Roman-Dutch law, not African custom. Historically, precolonial African societies valued both matrilineal and patrilineal naming practices. This judgment marks a move towards greater equality and inclusivity in family naming conventions.

Beyond the Letter: Equality Is Not a Zero-Sum Game

Many South Africans overlook legal judgments, but this recent ruling marks a significant step for gender equality. Previously, women could choose their surname after marriage, while men faced hurdles and often could not take their spouse’s name or double-barrel surnames for family unity, a situation exacerbated for same-sex couples.

The Constitutional Court, in a judgement eloquently penned by Justice Lorna Theron, unanimously ruled that these restrictions unfairly discriminated against both men and women, citing clear harm to families seeking to share or combine surnames. By eliminating these provisions, the Court now allows any partner to change, hyphenate, or keep their surname without bureaucratic obstacles.

This decision doesn’t enforce new norms but removes old barriers, letting individuals freely decide their family identity.

Facing the Cannon of “Culture”

When South African courts reference culture, it often sparks debate, as seen in recent reactions across social media and community spaces. While some welcome greater equality, others question changes to traditions like lobola or see them as foreign influence.

Viewing culture as unchanging overlooks South Africa’s history of adaptation; precolonial societies did not strictly adhere to patrilineal surnames. Maternal, clan, or circumstance-based names were common before European colonialism imposed new norms.

Names historically carried spiritual and communal significance, rather than being fixed paternal markers. A practice established by colonial authorities to enforce bureaucratic control, not indigenous tradition.

Even customs like ilobolo have complex meanings beyond surname conventions, focusing more on union between families than rigid inheritance of names. Current resistance to flexible surnames is rooted more in colonial legacy than tradition.

Truly respecting cultural heritage means embracing its diversity and the importance of choice, as names served for centuries as a form of storytelling, honouring different aspects of identity and ancestry.

From Theory to Practice: Empowering Identity, Not Creating Chaos

Legal changes do not instantly lead to social transformation; their effect depends on how quickly the Department of Home Affairs and Parliament respond. The court has suspended discriminatory sections for 24 months, allowing Parliament time to update laws and administrative systems. Meanwhile, both spouses can now legally take each other’s surname or create a combined one, requiring institutions to adapt their policies accordingly.

This benefits families who want flexibility in choosing surnames for themselves and their children. A significant move for those with matrilineal heritage or intercultural and same-sex couples. South African law still requires both parents to agree on a child’s surname, and while some families already use creative naming conventions, administrative processes must keep up.

Ultimately, the Court clarified that surname choice is about increasing personal freedom, not forcing choices. This decision at last leaves family identity firmly in the hands of individuals, not the state.

Comparative Perspective: South Africa’s Global Shift

In supporting this ruling, I am not arguing for South Africa to follow the West for its own sake. But it is telling that across several democracies, the law has steadily moved to allow both spouses to choose how a family’s name is structured. Spain, for example, used to keep the father’s surname as normative, but since 2017, parents can freely choose the order of the child’s surnames, or both parents can retain their own. 

Spain’s reforms aimed to “advance gender equality” by explicitly disrupting the historical precedence of the paternal surname.

Similarly, Canada and much of the US allow both partners to freely assume each other’s surnames or to hyphenate names for themselves and their children. In practice, this has led to a far broader, more creative pool of surname arrangements that is sometimes met with confusion, but mostly with acceptance that identity is best built at home, not in Parliament’s corridors.

What South Africa has done is not simply mimic a foreign trend, but resume the journey we started in 1994: to insist that equality means substantive empowerment, especially over daily acts that shape dignity. The Constitution, after all, enshrines the right to equality before the law without discrimination based on gender, race, or marital status. By targeting the subtle, insidious scripts of patriarchal law, even if “just about names”, the Court has again lived up to its calling as the conscience of a young, plural democracy.

NGO and Activist Response: A Victory Against Patriarchy

Civil society and gender rights activists were quick to celebrate the verdict. Wise4Africa’s Brenda Madumise-Pajibo called the ruling “long overdue”, arguing that the state stood to lose nothing by letting families make personal choices about names. “What does the state lose if I take my husband’s surname or if he takes mine? It doesn’t change the price of bread. This should have happened years ago.”

Women’s Legal Centre, the Commission for Gender Equality, and multiple equality and justice advocacy groups agree: surname rules were among the “last, lingering” artefacts of patriarchal law. For years, they reinforced a view that male identity anchors the household, even as women became breadwinners and household heads.

Indeed, the challenge was also supported by the Free State Society of Advocates as a friend of the Court, a rare alliance showing that the formal legal fraternity is prepared to question its own traditions for the greater good. For gender activists, this is not an abstract legal technicality, but a correction to laws that actively erase women’s identities, exclude same-sex couples, and restrict the basic right to self-definition.

Children’s Surnames: Unpacking the Deeper Issues

Some critics, and even the applicants in the Free State and Constitutional Court cases, raised questions about how this ruling would impact the surnames of children. In one of the cases, a couple hoped to have their child’s surname amended to match the family’s chosen name, arguing that a lack of administrative clarity would perpetuate confusion and split family identity. The Court, however, stopped short, pointing out that the law on minor children’s surnames falls under a different section of the Act and remains subject to consent or legal process.

Yet, the principle stands: children are more than registration numbers. The trauma of growing up with symbolic reminders that identity is contested can have real implications. Allowing families to form consensual, flexible approaches to children’s surnames will, over time, reduce the stigma and confusion that has coloured school records, travel paperwork, and even burial rights.

More importantly, in a country as linguistically and culturally complex as South Africa, children’s names are not mere markers, but bridges across family, tradition, and aspiration. They deserve the freedom to reflect unity or diversity, as their parents decide. The law, at last, is catching up with lived reality.

Social Media and Public Reaction: Jokes, Divisions, and Honest Conversation

If the state is sometimes slow to adapt, society rarely misses a beat. Social media quickly filled up with both heartfelt stories and cynical jokes: “Now men have to pay for the surname change AND the wedding!”, or, “Can women start paying ilobolo?” Others offered more thoughtful commentary, pointing out that rare family names (especially matrilineal or otherwise endangered surnames) could now be preserved, or that new hyphenated “rainbow” names might flourish in the classrooms and offices.

Some, predictably, wrung their hands about African culture, masculinity, and the threat of “outsiders” marrying into a family only to supplant its name. Posts ranged from full-blown resistance (“Nonsense!”) to cautious optimism: “A step toward a real, adult democracy with real personal freedom”.

But if anything, the ruling has forced families, communities, and men in particular to question why we see names as the last fortress of honour. Surely, if identity is so fragile that it can be stolen or dissolved by allowing more choice, then our hold on culture was never strong in the first place. Culture is not a museum piece: it is lived, reinterpreted, and remade, every day.

Writing in Our Own Voice: This is Real Progress

This ruling, and its defence, is not the musings of legal scholars or the platitudes of the Twitter and WhatsApp crowd. It is real progress, for real people. Like most South Africans, I am less concerned with abstract dogma and more interested in human stories. Like the couple who wanted to mark their shared journey by honouring the wife’s parents; the new parents who want their child to carry a name that tells the truth of both heritages; the partner who knows that the act of naming can be a tiny act of rebellion against small-mindedness.

This ruling places the decision back exactly where it belongs: with individuals and families. It does not demand or forbid anything. It simply acknowledges, at last, that partnership ought to mean equality; that names are repositories of love, loss, belonging, and, yes, even progressive ambition.

The Path Forward: Power, Choice, and a Reset of Tradition

We must not be naïve. Laws alone do not change minds. There will always be those who resist, who grumble about “the good old days”, or who find in tradition a comfort against the winds of change. But the history of South Africa; of every family, every village, every city; is a testimony to culture that bends and does not break.

If we are to stand by the vision of the Constitution, we must support every effort to make equality not just a buzzword but a lived, daily experience. Surname choice, for all its supposed triviality, is a battle fought on the ground of genuine dignity and recognition. By letting families negotiate their own stories, we honour a deeper culture. A culture that is African not because it is static, but because it is alive, contested, and evolving.

This is, above all, a win for agency. A win for saying our children and grandchildren need not carry surnames for reasons they don’t understand, or out of fear of “what people will say”. It is a win for every partner who wants equality not just in spirit, but in paperwork and ritual. And it is a win for the project of building a country where identity is never assigned, always chosen.

So, here’s to every family starting or restarting the conversation: What do our names mean? Who do we wish to honour? And what new stories do we now have the power to write?

Words mean power. Names build bridges. Let us be grateful that, at last, the law is making space for both.

(Dube is a noted Political Economist, Businessperson, and Social Commentator whose insights are regularly featured on UkhoziFM and in various newspapers. For further reading and perspectives, visit: http://www.ncodube.blog)