Jordaan & Others v. Minister of Home Affairs & Another CCT 296/24 [2025] ZACC 19 (S. Afr.) Available at  SAFLII.

Case Name: Jordaan & Others v. Minister of Home Affairs & Another, CCT 296/24, [2025] ZACC 19 (S. Afr.), available at SAFLII.

Name of Court: Constitutional Court of South Africa

Corum: Madlanga ADCJ, Dambuza AJ, Kollapen J, Majiedt J, Mhlantla J, Opperman AJ, Rogers J, Theron J and Tshiqi J.

Judgement: Theron J (unanimous)

Judgement date: 11 September 2025

Parties involved

Applicants

• The first applicant is Ms Jana Jordan who is married to the second applicant, Mr Henry van der Merwe. The third applicant is Ms Jess Donnelly-Bornman, who is married to the fourth applicant, Mr Andreas Nicolaas Borrnman.

 Respondents

• The first and second respondents are the Minister of Home Affairs and the Minister of Justice and Constitutional Development respectively, each cited in their respective capacities. The department of home affairs is responsible, among other duties, for maintaining the national population register and the birth, marriage and death records.

Facts of the case

• The matter originated in the High Court when Ms Jana Jordaan and her husband, Mr Henry van der Merwe, sought to formalize their marriage with the husband adopting his wife’s surname, a reversal of the traditional convention in South Africa. The Department of Home Affairs rejected this request, stating that existing administrative practice and statutory provisions did not permit a male spouse to take his wife’s surname.
• A similar challenge was brought by Ms Jess Donnelly-Bornman and Mr Andreas Bornman a couple who wished to register a joint double-barrelled surname, “Donnelly-Bornman” with the husband also intending to use the double barrel surname. Their application was denied on the ground that only women were legally entitled to assume their husband’s surname upon marriage.

Issues 

• The court considered whether s 26(1) (a)-(c) of the Birth and Deaths Registration Act, 1992, (S. Afr.) was in line with Constitution, particularly the equality clause in so far as the section prevented man from assuming the surnames of their spouse.
• Whether the Birth and Deaths Regulation Act Regulation 18(2) was in line with the S. Afr. Const., 1996.
• The court had to consider the appropriate remedy to address the issues raised by the applicants.

High Court

Legal arguments

Applicants

• The applicants brought an application to the High Court, they sought for a declaration that s 26(1) (a)-(c) of the Birth and Deaths Registration Act (S. Afr.) and reg 18(2) (a) is unconstitutional, to the extent the section and the regulation violated the equality clause in South African Constitution, 1996, s9(1). The applicants argued that the section and the regulation perpetuated the discrimination based on gender is so far as they did not allow the males to assume the surnames of their wives upon registration of their marriage. This retained the patriarchal nature of society where men dominate.
• The applicants argued that the impugned provisions violate the Constitution by arbitrarily differentiating people’s ability to change their surnames upon marriage or of their own of their own accord, based on their sex or gender.

Respondents

• The respondents did not oppose the matter in High Court.

Final Decision

In addressing the issue number 3 which is the appropriate remedy, the high court ordered that s 26(1) and reg 18(2) are invalid in so far as they are contrary to the S., Afr., Const., 1996. The high court suspended the declaration of invalidity for 24 months to allow the parliament to remedy the defect by amending the existing legislation or enact new legislation to allow male persons to assume their spouse surnames. In the interim the High Court ordered a reading-in of terms reflecting that both men and women may apply to change their surnames. The High Court granted the relief and amended the surnames of the applicants as they wished. The court ordered that the applicants shall be referred to the Constitutional court for confirmation of constitutional invalidity.

Legal Reasoning/Ratio decidendi

In addressing issue number 1 and 2, The High Court ordered that section 26(1)(a) -(c) and reg 18(2) was invalid in so far as they did not allow the men to assume the surnames of their wives upon registration of their marriage. This was against the S., Afr., Const, which demanded equality amongst everyone whether men or women. 

Constitutional Court

In South Africa, if the High Court or Supreme court of appeal makes an order of Constitutional invalidity, it must be confirmed by the Constitutional Court, hence, the applicants applied to the Constitutional Court for confirmation of the decision of the High Court.

Legal arguments

Applicants

The applicants applied to the Constitutional Court of South Africa, for the confirmation of the decision of the High court which ordered that s 26(1)(a) -(c) and Reg 18(2) are constitutionally invalid. The applicants abided by their arguments made in the High Court that section 26(1)(a) -(c) and Reg 18(2) are invalid in so far as they did not allow male persons to assume the surnames of their spouse. They argued that this was a discrimination based on gender. They argued that these provisions are patriarchal, discriminate on a prohibited ground and cannot be justified in an open and democratic society based on human dignity, equality and freedom. They also contended that, this was not line with the S., Afri., Const., s 10, which is human dignity. They further contended that the limitation that these provisions pose on their rights, it is not a justifiable limitation in terms of s 7(3) read with s 36 of the S., Afr., Const.

Respondents

In the Constitutional court, the respondents did not oppose the confirmation of declaration of unconstitutionality of the provisions. They agreed with the applicants in all their arguments. They agreed that the remedy is that the Act should be amended to reflect constitutional values and agreed to the proposal of the applicants that the order of constitutional invalidity be suspended and parliament be granted a two-year period within which to remedy any such defect.

Final decision

• In addressing issue number 3 of the appropriate remedy, the Constitutional court confirmed the order of the High Court that, the section and the regulation are unconstitutional. The court suspended the declaration of invalidity for 24 months to enable the parliament to remedy the defect by either amending the existing legislation or passing new legislation within 24 months, to ensure that all persons are afforded access the right of assumption of another surname.
•  Pending the coming into force of a new legislation or amendment of the existing legislation, s 26(1) was declared not to apply when (a) a person after their marriage assumes the surname of the spouse with whom such person concluded a marriage or after having assumed such surname, resumes a surname which they bore at any prior time; (b) a married or divorced person or a widow or widower resumes a surname which they bore at any time; (c)and a person, whether married or divorced, or a widow or widower, adds to the surname which they assumed after the marriage, any surname which they bore at any prior time.
•  The court said that this relief should continue to apply if the parliament fails to remedy the defect or enact new legislation.

Legal Reasoning/Ratio Decidendi

• In a unanimous judgement made by the Constitutional Court, authored by Justice Theron. The Constitutional Court confirmed the decision of the High Court. The court addressed issue number 1 and 2.  The court considered the right to equality and the two-stage test laid out in Harksen v. Lane NO and Others, 1998 (1) SA 300 (CC) (S. Afr.). The sections violated the right to equality in terms of a ground of gender as it differentiated between man and woman, as it did not allow male persons to assume the surnames of their spouse, and this was based on a past where man dominated in society.
•  The legitimate government purpose in this case, namely seeking to regulate surnames to ensure that new surnames are not created which bear no connection, is not served by the differentiation between man and woman so the differentiation did not serve a legitimate government purpose. 
• The discrimination was unfair when considering the history that in the past, society has been patriarchal where man dominate and only the man surname can be taken by a woman. This affected woman as this enforced that man are dominant and left women down in the hierarchy. This also affected the dignity of women. The S., Afr., Const, requires that these norms be removed from society and promotes equality. 
• The prohibition also infringed on the right to equality and dignity of applicants and cannot be justifiable in an open, and democratic society based on human dignity, equality and freedom. So, these sections were unconstitutional.
• The issue of the regulation had been decided that it is invalid by the High Court, and there was no need for the Constitutional court to intervene because a regulation is not an Act of parliament, so it cannot be decided by the Constitutional Court.
• The court also considered international and foreign law, which support the view that there should be no gendered qualifier on the ability of spouses to amend their surnames after marriage. So, the sections violated international law principles.

Conclusion

This case has brought a change in South African law and has dismantled the patriarchal system where men dominate over women in society. This case has achieved some part of the intention of the drafters of the South African who aimed at bringing equality amongst all. Now men can assume their spouse surnames and no longer only women who can assume their spouse surnames. This decision of the Constitutional Court has been cheerfully welcomed but it is not without criticisms. Those who practice culture, particularly the black people in South Africa, say culture does not permit a man to assume the surname of their spouse. What needs to be noted is that the decision of the Constitutional Court is not forcing any men to assume the surname of their spouse, it gives a choice to those who wish to. South Africa is a diverse society, not only black people live in South Africa, so if the decision is not welcomed by the black people, some black people welcome it, and some other races welcome it.

Reference(S):

Constitution

South African Constitution, 1996.

Legislation

Birth and Deaths Registration Act, 1992, (S. Afr.)

Cases

Harksen v. Lane NO and Others, 1998 (1) SA 300 (CC) (S. Afr.).

Regulations

Birth and Deaths Regulation Act 1992, Reg 18(2).