Authored By: Teboho Mmako
University of South Africa
Abstract
This article examines the Constitutional Court’s decision in Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19, which affirmed that husbands may assume their wives’ surnames. It analyses how the ruling advances constitutional equality while intersecting with South Africa’s indigenous customary law, where surnames traditionally reflect lineage and ancestral belonging. Drawing on case law and academic commentary, the article explores the tension between constitutional transformation and cultural continuity, arguing that equality and tradition are not incompatible but must coexist through respectful dialogue. It concludes that the Jordaan ruling symbolises a maturing plural legal system that protects both individual autonomy and cultural identity.
Introduction
In 2025, the Constitutional Court of South Africa in Jordaan and Others v Minister of Home Affairs and Another declared parts of the Births and Deaths Registration Act 51 of 1992 unconstitutional for preventing husbands from assuming their wives’ surnames.1 The judgment was hailed as a triumph for equality and personal identity. Yet, in a country that constitutionally recognises both individual rights and collective cultural traditions, this ruling reignites a sensitive question: how should equality operate in the presence of deeply rooted customary law?
South Africa’s legal order rests on the coexistence of two normative systems constitutional law and indigenous customary law. The Court’s ruling, though progressive, challenges traditional structures that define family identity, lineage, and social continuity.
This article explores how the Constitutional Court’s commitment to equality interacts with indigenous law. It begins by outlining the Jordaan ruling, then analyses equality and dignity within the constitutional framework. Thereafter, it examines indigenous conceptions of names and identity, particularly in customary marriages. Finally, it reflects on how equality and tradition can coexist without erasing the values of either.
The Constitutional Court’s Ruling in Jordaan
The applicants in Jordaan challenged sections 26(1)(a)–(c) of the Births and Deaths Registration Act and its accompanying regulations, which made it simpler for a woman to assume her husband’s surname but cumbersome for a man to assume his wife’s surname or to combine both.2 The Court held that this differentiation amounted to unfair discrimination on the grounds of sex and gender, violating section 9(3) of the Constitution.3
Justice Kollapen, writing for a unanimous bench, reasoned that the law entrenched outdated gender roles by presuming that the husband’s surname symbolises the family identity.4 By denying men equal choice, it restricted their autonomy to express identity and family belonging. The Court stated that this limitation “removes the right of individuals to make choices pertaining to their own identity and conveys that only the man’s surname deserves to serve as the family surname.”5
To remedy the defect, the Court declared the impugned provisions invalid but suspended the declaration for 24 months to allow Parliament to amend the law. In the meantime, it ordered the Department of Home Affairs to accept applications from men under a gender-neutral scheme.6 The decision applied to all forms of marriage recognised in South Africa civil, customary and religious ensuring inclusivity.
The Jordaan case therefore affirms that equality must operate not only in public spheres such as employment or politics, but also in private and symbolic domains like family naming. Yet, the symbolic importance of surnames also holds deep customary meaning, creating a point of tension between equality and tradition.
Equality and Identity under the Constitution
Equality is a foundational value of the Constitution. Section 9(1) provides that everyone is equal before the law, while section 9(3) prohibits unfair discrimination on numerous grounds, including gender. The Court in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) developed a two-stage inquiry to test whether differentiation amounts to unfair discrimination asking whether there is a legitimate purpose and whether the effect infringes dignity.7
In Jordaan, the answer was clear: differentiating based on gender stereotypes about whose name carries family authority undermines dignity. Section 10, guaranteeing dignity, reinforces this approach. As the Constitutional Court held in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC), equality without dignity is hollow, since discrimination diminishes one’s sense of self-worth.8
However, equality does not exist in isolation. Sections 30 and 31 of the Constitution affirm the rights of cultural and religious communities to enjoy and practise their traditions. These provisions, read with section 211(3), recognise customary law as an independent system but only to the extent that it is consistent with the Constitution. This constitutional compromise creates what scholars like Himonga call “hierarchical pluralism”: customary law is recognised, but constitutional norms remain supreme.9
Thus, when equality rights intersect with cultural practices, the Court must balance respect for diversity with adherence to the Bill of Rights. This balancing act becomes particularly complex when cultural practices are historically patriarchal, as seen in traditional surname conventions.
Tradition and Customary Law: The Indigenous Perspective
In African customary law, names are more than identifiers they signify lineage, social belonging and ancestral continuity. The family name (isibongo in Nguni cultures, sefane in Sotho, Tswana) connects individuals to their paternal ancestors, carrying both spiritual and social weight.10 Traditionally, children inherit the father’s surname because descent is patrilineal; the husband’s name links the family to its ancestors and serves as a record of inheritance and ritual duty.11
Customary marriages reinforce this pattern. When a woman marries, she joins her husband’s family, often adopting his surname as a public symbol of integration. In many cultures, it is through this naming that ancestors recognise her as part of the husband’s lineage.12 Hence, the act of a man adopting his wife’s surname could, in traditional logic, disturb the ancestral and social order, implying reversal of lineage roles.
Yet, customary law is not static. The Constitutional Court in Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) acknowledged that customary law is “a living system” capable of adapting to contemporary realities.13 Similarly, in Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC), the Court invalidated the male-only rule of inheritance but reaffirmed that the goal is not to destroy custom, but to align it with constitutional equality.14
From this lens, Jordaan does not abolish customary naming but questions whether the state may legally entrench a gendered hierarchy. Customary law remains free to preserve its cultural logic, provided individuals are not coerced into conformity. The Court’s decision thus indirectly presses customary systems to evolve to retain meaning while respecting personal autonomy.
Where Equality Meets Tradition
The meeting point between equality and tradition is both legal and symbolic. Legally, the Constitution demands that all laws including customary law conform to the Bill of Rights. Symbolically, the family name reflects identity, heritage and belonging. When the Constitutional Court allowed men to take their wives’ surnames, it did not outlaw cultural practices; it simply gave individuals a choice. The difference lies between preserving culture and enforcing culture.
Still, tension remains. Customary law places value on collective identity, while constitutional equality foregrounds individual freedom. In many rural communities, social recognition depends on adherence to customary norms, and deviation may invite stigma. As Bennett notes, “the individual in African customary law is defined through relationships as a member of a family, clan, and community.”15 This relational conception of self may conflict with the individualist ethos of constitutional rights.
However, such tension is not unique to the surname debate. The same dynamic surfaced in Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC), where the Court had to determine whether a husband could marry a second wife under customary law without the first wife’s consent. The Court balanced the value of equality with the reality of polygynous marriages, ultimately holding that consent was required to protect women’s dignity.16 The reasoning reflects an emerging pattern: rather than discarding custom, the Court interprets it considering constitutional values creating a dialogue between systems.
Thus, when equality meets tradition, the goal is not victory of one over the other, but coexistence through constitutional interpretation. The Jordaan decision extends that dialogue into the realm of family names.
Reconciling the Two Systems
Reconciling equality with custom requires acknowledging both the constitutional supremacy clause (section 2) and the lived importance of cultural identity. Parliament now bears the responsibility of crafting gender-neutral naming laws that respect both values. The following approaches may foster reconciliation:
- Recognition of choice within culture. Individuals who value customary surname practices should remain free to follow them; equality merely ensures that alternative choices are not legally obstructed.
- Consultation with traditional leaders. In line with section 211(2), the state should consult the National House of Traditional Leaders when reforming naming laws to ensure community understanding and legitimacy.
- Education and awareness. Misinterpretation often breeds resistance. Explaining that the judgment protects freedom rather than abolishes culture can reduce tension.
- Legislative nuance. The new statutory framework could include an optional provision allowing families in customary marriages to register both surnames or record lineage details alongside civil names, preserving ancestral recognition within modern systems.
By adopting such measures, South Africa can demonstrate that constitutional equality and indigenous traditions are not adversaries but partners in a plural legal order.
Critical Reflections
The Jordaan ruling reflects the Court’s ongoing project of transforming private law relations in line with constitutional values. Yet, the Court could have engaged more deeply with customary law in its reasoning. While it acknowledged that the ruling applies to customary marriages, it did not elaborate on how the decision interacts with the symbolic role of names in ancestral continuity. A brief acknowledgment of cultural sensitivity could have strengthened legitimacy among traditional communities.
Nevertheless, the judgment is consistent with the Court’s approach in Bhe, Shilubana and Mayelane: reforming custom through respectful dialogue rather than outright condemnation. This approach embodies the “living law” doctrine allowing communities to evolve traditions internally while aligning with equality. As Himonga and Nhlapo observe, the challenge of constitutional
pluralism lies not in choosing one system over another, but in cultivating “interaction that preserves identity while affirming human rights.”17
In essence, Jordaan invites society to rethink what a surname represents. It symbolises more than lineage it represents belonging, dignity and choice. The law’s role is not to dictate identity, but to secure the freedom to define it.
Conclusion
The Constitutional Court’s decision in Jordaan signifies an important moment in South Africa’s constitutional evolution. By recognising men’s equal right to assume their wives’ surnames, the Court dismantled a statutory relic of gender hierarchy. Yet, in doing so, it also illuminated the complex intersection between equality and tradition. Customary law, rooted in collective identity, continues to shape the cultural life of many South Africans.
The challenge ahead lies in reconciling these values without diminishing either. Equality must not become cultural erasure, and tradition must not become a shield for discrimination. Through thoughtful legislation, public education and dialogue with traditional leaders, South Africa can achieve a plural legal landscape where modern constitutional ideals and ancient customs coexist in mutual respect.
The journey “beyond the family name” is therefore not merely about surnames. It is about recognising that both the Constitution and custom seek human dignity one through individual rights, the other through communal belonging. The true task of constitutional democracy is to ensure that neither value silences the other.
Bibliography
Primary Sources
Cases
Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC) Harksen v Lane NO and Others 1998 (1) SA 300 (CC)
Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19 (SAFLII) Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC)
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC)
Legislation
Births and Deaths Registration Act 51 of 1992
Constitution of the Republic of South Africa, 1996
1Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19 (SAFLII).
2 Births and Deaths Registration Act 51 of 1992 s 26(1)(a)–(c).
3 Constitution of the Republic of South Africa, 1996 s 9(3).
4Jordaan and Others v Minister of Home Affairs and Another [202 5] ZACC 19 para 45.
5Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19 para 48.
6Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19 order paras 2–3.
7 Harksen v Lane NO and Others 1998 (1) SA 300 (CC) para 50.
8 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 28.
9 C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (Oxford University Press 2014) 42.
10 TW Bennett, Customary Law in South Africa (Juta 2004) 217.
11 C Himonga, ‘The Advancement of African Women’s Rights in the Context of South Africa’s Dual Legal System’ (2011) 60 ICLQ 708.
12 TW Bennett (n 10) 223.
13 Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) para 44.
14 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC) para 109. 15 TW Bennett (n 10) 120.
16 Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC) para 70.
17 C Himonga and T Nhlapo (n 9) 55.
