A unanimous Constitutional Court ruling affirming SA men's right to adopt their wives’ surnames has ignited debate over customary law's place in a constitutional framework, argues Anthony Diala, director of the Centre for Legal Integration in Africa at the University of the Western Cape.

The decision, stemming from a lawsuit against the Department of Home Affairs by Henry van der Merwe and Andreas Nicolas Bornman, declared section 26(1) of the Registration of Births and Deaths Act unconstitutional for violating gender equality and reinforcing patriarchy.

The court suspended the invalidation, giving Parliament two years to amend the law.

Diala, writing on The Conversation, asserts that ‘the judgment puts customary law squarely in the spotlight’. He notes that statutory and customary laws coexist in SA but are unequal, as statutory laws regulate customs' validity, often through a Western lens. This creates tension, as 'judges interpret customs from a western viewpoint, which often annoys people who observe customary laws.'

The ruling, while promoting gender equality, he argues, 'opens another chapter in the struggle between customs and constitutional rights.'

The Congress of Traditional Leaders of SA condemned the ruling as 'disgusting, anti-African' and a threat to indigenous values, cultural identity and succession norms.

Diala highlights some concerns: 'From a legal perspective, the ruling throws up some practical challenges in polygamous marriages and royal succession. For example, how does a man choose a surname from one of several wives?'

He also raises the issue of bride-wealth (ilobolo), defined in the Recognition of Customary Marriages Act as 'property, whether in cash or in kind, that a prospective husband or the head of his family undertakes to provide to the head of the prospective wife’s family in consideration of a customary marriage.'

Since bride-wealth legitimates family unions and paternal naming rights, Diala suggests a woman might need to pay bride-wealth for her husband to take her surname, potentially requiring legislative amendments.

Diala questions the customary status of marital surnames, noting their European origin in the 1500s and 1600s, imposed during colonial administration.

He explains: 'Originally, men and women referred to themselves as the child of someone, without emphasising surnames. Research shows gender flexibility in many African communities, with women retaining their birth names after marriage.'

Justice Leona Theron, delivering the judgment, stated: '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.'

Diala argues on The Conversation that resistance to the ruling ignores the colonial roots of surnames.

'If Africans have accepted changes from colonialism (and globalisation) as customary law, then they should accept men taking their wives’ surnames,' he contends, citing the adoption of Christianity and Western education.

However, he warns that the judgment reflects broader tensions between customary laws and constitutional rights. The Constitution’s Bill of Rights regulates customary laws, echoing colonial-era 'repugnancy tests' that invalidated customs deemed incompatible with Western notions of justice.

Diala cautions that Eurocentric judicial interpretations risk marginalising traditional leaders and eroding cultural diversity.

'Ultimately, customary rites, polygamous unions and initiation ceremonies may lose their cultural flavours. This would dilute the uniqueness of social life in traditional communities. Judges should avoid marginalising traditional leaders and faith-based institutions. Doing so undermines legal pluralism in SA’s multicultural nation,’ Dialo contends.

Full analysis in The Conversation

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