Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24)[2025] ZACC 19 (11 September 2025)

Author: Gontse Michelle Nchabeleng  

University of Johannesburg  

South Africa  

Case Summary:  

1. Case Title and Citation  

• Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19 (11 September 2025) 

2. Court Name and Bench 

• Court: The Constitutional Court of South Africa 
• Bench: Unanimous Bench of the Constitutional Court 
• Judges: Theron J, Madlanga ADCJ, Dambuza AJ, Kollapen J, Majiedt J,  Mhlantla J, Opperman AJ, Rogers J, Tshiqi J 

3. Date of Judgment  

• 11 September 2025 

4. Parties involved  

Applicants: 

• First Applicant: Jana Jordaan 
• Second Applicant: Henry Van Der Merwe 
• Third Applicant: Jess Donnelly-Bornman 
• Fourth Applicatant: Andreas Nicolaas Bornman 

Respondents: 

• First respondent: The Minister of Home Affairs, Responsible for administering the Birthd and Deaths Registration Act (BDRA) 51 of 1992 
• Second respondent: Minister of Justice and Constitutional Development  

5. Facts of the case

• The applicants, who are male spouses in heterosexual marriages, made an  application to the High Court for an order that would challenge the constitutional validity of sections 26(1)(a)-(c) of the Births and Deaths  Registration Act1and Regulation 28(2)(a) of the Regulations on the Registration of Births and Deaths, which govern the amendment of last names  and forenames of South African citizens. They wanted to have these statutory  provisions provisions declared unconstitutional on the basis that they were  discriminatory on the grounds of gender. 
• These statutory provisions particularly grant married women the choice to  adopt their husbands’ last names upon marriage. They are also given the  option to keep their maiden names and/or make usage of a double-barrelled  surname. Men however, were not afforded the same courtesies under these  statutory provisions.  

Background of facts:  

• Prior to their marriage, the first and second applicant had agreed that upon the  conclusion of their marriage, The second applicant, which is the husband,  would assume the last name of the first applicant, which is the wife. However,  when the applicants in question went to register their marriage, They were told  by the Department of Home Affairs that this would not be possible. The  applicants also have a child born of the marriage that they wish to adopt the  surname of the first applicant, the wife2.  
• In the case of the third and fourth applicants, The third applicant, who is the  wife of the Fourth applicant, as she was an only child, wanted to retain her  maiden name to maintain family ties with her biological parents. The applicants therefore both wanted to adopt a double-barrelled surname, who  would appear as “Donnelly-Borman”, They were however, also told by the Department of Home Affairs that only the wife could have their last name  amended3. 
• The High Court declared the above mentioned statutory provisions  unconstitutional on reasons that they both are discriminatory on grounds of  gender and not affording male spouses the right to adopt their wives’ last  names4. 
• The High court ordered the first respondent to amend the surnames of the  applicants as they wished and that the order made in the applicants’ favour be  referred to the Constitutional Court to confirm constitutional invalidity. 
• The applicants therefore took the matter to the Constitutional Court for a  confirmation of the invalidity made by the High Court. 

6. Issues raised 

The Constitutional Court had to determine5: 

• The constitutional validity of section 26(2)(a)-(c) of the Births and Deaths  Registration Act  
• The constitutional validity of Regulation 18(2)(a). 
• Whether the statutory provisions in question violated Section 9 of the South  African Constitution, which is the equality clause and the right to dignity in  terms of section 10. 
• The appropriate remedy – whether the relevant provisions should be declared  unconstitutional, and whether such declaration should be in suspension in  order to allow parliament amend or pass new legislation. 

7. Arguments of the parties6

• The applicants’ main argument was that the relevant provisions constituted  gender-based discrimination, which was prohibited under the constitution and  was unjustifiable in an “open and democratic society”. 
• They argue that the relevant provisions are in violation of section 9 of the  constitution, which provides for the right to equality, and section 10, which  provides for the right to dignity. 
• The applicants further argue that the relevant provisions support gender norms  rooted in patriarchy and that they were unconstitutional as they made it  difficult for people to be able to change their last names simply because of  their gender. 
• The respondents were not against the Constitutional court confirming the  declaration of invalidity and agreed with the applicants’ arguments that the  relevant provisions were deeply rooted in patriarchy and colonialism. 
• The respondents were in favour of an amendment of the Act that would allow  it to reflect the values of the Constitution. 

8. Judgment/ Final Decision 

• In its analysis, the court made reference to the Sithole7case, in which it was  held that “Patriarchy has resulted in different forms of discrimination against women with dire consequences. It is therefore one of the main drivers of the oppression of women through gender stereotyping and the abuse of cultural  practices. These dire consequences have rendered women vulnerable and this  vulnerability is an aspect of social reality.”  
• The Constitutional Court confirmed the constitutional invalidity order that was made by the High Court in favour of the applicants8.
• The court declared Section 26(2)(a)-(c) of the Births and Deaths Registration Act as unconstitutional on the basis that it was in violation of section 9 of the constitution at it was discriminatory on the grounds of gender. 
• The court suspended the invalidity declaration for a period of two years in  order to allow parliament to provide a remedy by either providing an  amendment to the relevant legislation/Act or having a new legislation passed  within the given period. 
• The constitutional court also made an order for a “reading-in” remedy that  would allow the applicants to adopt the surnames they wished, and that they could make the necessary applications to the relevant authorities in order for  these to take effect. 

9. Legal Reasoning/ Ratio Decidendi  

• The court referred to the Harksen v Lane judgment9, in which the court came  up with a test that included two stages in order to determine if the  discrimination was unfair. The first stage required the court to establish  whether the relevant provision made a distinction between people or groups of  people and secondly, whether that distinction served a reasonable government  purpose.  
• In determining whether there was differentiation or distinction, the court  argued that men not being able to adopt their wives’ last names was a clear  definition of differentiation10. The court further held that purpose of the  government, namely the regulation of last names to avoid the creation of new  surnames which are in no way connected to the family surname, was not  served by the differentiation and therefore did not serve a legitimate government purpose, and therefore the discrimination was held to be unfair.11
•  The court held that the provisions in question constituted gender  discrimination as they infringed upon people’s rights to have a choice regarding which surnames they wished to use simply because of their gender. • The court held that it was clear that the provisions in question relied on  assumptions rooted in patriarchy on the structure of families and stripped couples in heterosexual marriages of the right to partake in making personal  decisions on behalf of their families. It stated that “This practice reinforced  patriarchal norms where women were seen as subordinate to their husbands  and expected to assume their identity.”… “This practice further reinforces an  arbitrary distinction between men and women, by implying that a man’s  identity is fixed and unchangeable while a woman’s identity is adaptable.”12 
• The court argued further that automatically assuming that upon marriage, the  family adopts the surname of the husband by default, was a clear violation of  the equality rights of both men and women.  
• The Court also made reference to international law, particularly the  International Covenant on Civil and Political Rights (ICCPR)13 which includes  multiple provisions supporting a person’s ability to amend their last names  irregardless of their gender. General Comment No 28, the court added, states  that there should be equal opportunity amongst spouses to keep or use a new  family name. 
• The court referred also to foreign law, Such as Zimbabwe, which does not  attribute surname amendments on the basis of gender. Under the country’s  relevant legislation, spouses may make applications to the relevant authorities,  and only when the change is for an unlawful purpose, may it be denied.14 10. Conclusion/ Observations  
• This case represents significant changes and developments in South African  family and customary laws. It abolishes gender-based discrimination in South  African family law. The case also draws attention to substantive equality,  challenges norms and principles rooted in patriarchy, highlights the role of the  Constitution in protecting the rights of individuals. 
• However, in my opinion, the Constitutional court decision could spark debate,  particularly in relation to customary law, where a wife assuming her husband’s  surname upon marriage holds a deeper cultural and traditional meaning. 
• Nonetheless, This case coincides Family law with the values underlined in the  Constitution and International human rights. It could set precedent for upcoming challenges to gender-based legislation, ultimately solidifying the  reputation of South Africa as being in the forefront in the promotion of  equality globally. 

Reference(S):  

• Births and Deaths Registration Act 51 of 1992. 
• Constitution of the Republic of South Africa, 1996. 
• Harksen v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR [1489] (CC); [1998] (1)  SA 300 (CC), [52]. 
• Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025]  ZACC 19. 
• Sithole v Sithole [2021] ZACC 7; 2021 (5) SA 34 (CC); 
• International Covenant on Civil and Political Rights, 16 December 1966 (ratified by  South Africa on 10 December 1998). 
• Regulations on the Registration of Births and Deaths. GN 128 GG 37373, 26  February 2014.

1 Births and Deaths Registration Act 51 of 1992. 

2Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19, [10].

3Jordaan, [11]. 

4Jordaan, [16]. 

5Jordaan, [20]. 

6Jordaan, [17], [18], [19].

7 Sithole v Sithole [2021] ZACC 7; 2021 (5) SA 34 (CC); 

8Jordaan, [85].

9 Harksen v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR [1489] (CC); [1998] (1) SA 300 (CC), [52]. 10 Jordaan, [34]. 

11 Jordaan, [39], [41]. 

12 Jordaan, [49].

13 International Covenant on Civil and Political Rights, 16 December 1966 (ratified by South Africa on  10 December 1998). 

14 Jordaan, [74].