He wanted to take his wife’s last name. But first, they had to change South African law

When Jana Jordaan first told her then-fiancé Henry van der Merwe that she intended to keep her last name after they got married, he not only supported her, but offered to take her surname as well.

But the South African couple hit a snag when they tried to register their decision with a marriage officer at the Department of Home Affairs after tying the knot in 2021.

“She looked very confused, and then she said, ‘My system doesn’t allow for that,” Jordaan told As It Happens host Nil Köksal. “I just, I didn’t have words.”

It turned out that it was against the law in South Africa for a husband to take his wife’s family name, or for both spouses to hyphenate their surnames. 

The couple decided to fight that Apartheid-era law in court. Now, three years later, South Africa’s Constitutional Court has struck down the law, calling it a “colonial import” that discriminates on the basis of gender. 

“Fortunately, the system works,” Jordaan said.

‘Equality in a relationship is very important’

Jordaan says she’s long known that she wanted to keep her family name after marriage. She lost both her parents when she was just four years old, and her surname name is a way of staying close to them.

“I had a very strong connection to keeping my identity connected to the Jordaan family,” she said. 

Jordaan made her intentions clear to Der Merwe as soon as things started getting serious. He supported her decision immediately, and took it a step further by saying he would become a Jordaan himself. 

“It was something that I wanted to do as well to show my support for my future family and for my future wife, because I feel that equality in a relationship is very important,” Der Merwe told Köksal.

There was just one obstacle — the Births and Deaths Registration Act of 1992, which allows a woman to change her surname after marriage, but not a man.

So Jordaan and Der Merwe sued the Department of Home Affairs for gender discrimination.

They were joined by South African couple Andreas Nicolaas Bornman and Jess Donnelly-Bornman, both of whom wanted to hyphenate their family names. 

A lower court ruled last September that the law is unconstitutional and amounts to gender discrimination. The Constitutional Court upheld that ruling on Thursday. 

The top court gave South African lawmakers and President Cyril Ramaphosa two years to amend the legislation. 

‘The imposition of Western values’

Some South Africans took to social media to decry the court’s decision as an attack on South African values. 

But, in her ruling, Justice Leona Theron argued the opposite is true, saying the law is “rooted in colonialism,” and imposes outside ideas about marriage and gender onto African cultures. 

“In many African cultures, women retained their birth names after marriage, and children often took their mother’s clan name,” Theron wrote.

“With the arrival of the European colonisers and Christian missionaries, and the imposition of Western values, the tradition of women taking their husband’s surname was introduced.”

Theron found the law discriminated on the basis of gender in violation of South Africa’s constitution, something she argued negatively impacted both men and women. 

“In the case of men, they are deprived of the ability to take their wives’ surnames if they so wish. In the case of women, the effects of this scheme are far more insidious,” she wrote.

“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.”

South Africa was the first on the continent to legalize same-sex marriage in 2006. The government also recognizes polygamous marriages, in which men can take multiple wives according to their ethnic group’s customs. 

Ignoring the haters

Jordaan and Van der Merwe were on vacation when the ruling came down, and are looking forward to celebrating their court victory when they return.

Van der Merwe, meanwhile, will soon changed his last name legally to Jordaan. He says he isn’t concerned in the slightest about what others think of his decision.

“I haven’t really paid any attention to the comments because, at the end of the day, the main focus is with my family and the decision that we have made for our family,” he said.

With files from The Associated Press. Interview with Jana Jordaan and Henry van der Merwe produced by Leïla Ahmouman.