Breaking the Chains of Patriarchy: A Constitutional Critique of Gender-Based Surname Registration in South Africa

Introduction

On September 11, 2025, the Constitutional Court of South Africa issued a unanimous decision in Jordaan and Others v Minister of Home Affairs and Others, signalling a significant upheaval in the landscape of South African family law. The lawsuit addressed a long-standing legal asymmetry: a statutory framework that allowed women to automatically acquire their husbands’ surnames after marriage but denying men the same opportunity. This gendered distinction, entrenched under the Births and Deaths Registration Act 51 of 1992 (BDRA), served as a “lingering ghost” of a colonial and patriarchal past that modern South African law has long worked to erase.

The conflict between antiquated legislative provisions and the transformational ideals of the 1996 Constitution was highlighted by the legal standstill that the applicants, two married couples seeking to adopt non-traditional name conventions, encountered. The claim that the ability to define one’s biological identity is a matter of “defining significance” for personal dignity and self-fulfillment rather than just a bureaucratic formality is at the core of this challenge. The applicants claimed that the law’s reluctance to acknowledge their preferences amounted to unjust discrimination and a violation of their basic rights.

This article makes the case that South Africa’s constitutional effort to end institutional patriarchy has reached a significant turning point with the Jordaan ruling. The Court went beyond formal legal equality to uphold a substantive approach that safeguards individual autonomy against gender hierarchies imposed by the state by overturning discriminatory surname rules. The following is how the article goes: Section III examines the Court’s use of the Harksen equality test and the factual matrix; Section II describes the contested legislative framework; Section V addresses the judgment’s remedial implications, while Section IV assesses the ruling’s historical and global context.

Main Body

The Legal Framework: Gendered Barriers in the BDRA

Section 26(1)(a)-(c) of the Births and Deaths Registration Act (BDRA) and its corresponding Regulation 18(2)(a) were the main targets of the constitutional challenge. Without the Director-General of Home Affairs’ express permission, South African nationals are not allowed to adopt a surname other than that listed in the population register under the general legislative system. In the past, Section 26(1) gave women a wide and automatic exemption, allowing them to freely take on a husband’s last name, return to a prior surname, or create a double-barrelled surname after getting married, being divorced, or becoming widowed.

In sharp contrast, men were not granted any such automatic privilege under the Act. Under Section 26(2), a male spouse who wanted to take his wife’s last name had to apply to the Director-General and provide “good and sufficient reason.” Additionally, Regulation 18(2)(a) specifically limited such reasons to modifications in the “marital status of a woman,” so barring husbands in same-sex marriages or civil unions from the Act’s inherent benefits and essentially closing the administrative door to males in heterosexual marriages.

Crucially, the state acknowledged that these clauses were “rooted in colonialism and patriarchal norms.” It emphasized how the BDRA’s use of gendered language, specifically referring to “husband” and “wife” was at odds with more inclusive, current legislation like the Civil Union Act 17 of 2006. As a result, the legislative plan imposed a strict gender binary that regarded the woman’s identity as flexible and relational while elevating the husband’s ancestry as the official default.

Case Law Analysis: The Jordaan Factual Matrix and Judicial Reasoning

The Jordaan case’s factual context demonstrates the real harm this legislative discrepancy causes. Since Jana Jordaan was an only child, the first and second applicants, Henry van der Merwe and Jana Jordaan, wanted Henry to take on Jana’s last name in order to maintain her familial ties to her late parents. In a similar vein, Andreas Nicolaas Bornman and Jess Donnelly-Bornman, the third and fourth applicants, wanted Andreas to take on a double-barrelled surname. Citing the Act’s gender-specific phrasing, the Department of Home Affairs declined to process the modifications in both cases.

The Constitutional Court used the two-stage test outlined in Harksen v. Lane N.O. to decide whether these measures were constitutional. The first step was to determine if the law made distinctions between groups of persons and whether those distinctions were justified by the government. The Court determined that Section 26(1) established a clear distinction based only on gender. The Court determined that the gendered restriction did not further the overall goal of surname regulation, notwithstanding the state’s argument that this goal was to guarantee name stability and prevent the development of names with no familial link. The integrity of the population registry is not jeopardized by permitting a man to adopt his wife’s current surname, any more than permitting a woman to adopt her husband’s. As a result, the Court determined that the differentiation was unreasonable and constituted a “naked preference” in violation of Section 9(1) of the Constitution.

The Harksen test’s second phase looks at whether the differentiation constitutes as “unfair discrimination”. The discrimination seemed to be unjust under Section 9(5) since gender is a specified ground under Section 9(3). The Court’s substantive equality analysis indicated that the law hurt both sexes: women were symbolically subjugated by a scheme that suggested a woman’s identity is flexible while a man’s is set, and men were denied the freedom to define their family unit. According to Theron J, this hierarchy of power takes place at a “deeply intimate level of human existence,” which violates Section 10’s right to dignity by preventing personal fulfillment in matters of central concern.

Critical Evaluation: Dismantling the Relational Identity of Women

The Jordaan ruling is significant because it dismantles the historical myth that gendered naming is an unchangeable custom. The Court observed that naming customs were flexible in many pre-colonial African tribes; children might inherit their mothers’ clan names, and women frequently kept their birth names. When Roman-Dutch law and the English idea of coverture were accepted, the custom of a wife immediately taking on her husband’s last name was recognized as a colonial import.

Under the Roman law notion of marriage cum manu, a wife became legally submissive to her husband, losing her separate legal identity and gaining status as his child. Similarly, the idea of coverture in English law held that a woman’s legal status was “covered up” or “in the shadow” of her husband. The Court ruled that, while the Matrimonial Property Act 88 of 1984 removed the formal marital power regime, the BDRA’s surname rules remained discriminatory relics of these hierarchical arrangements.

Crucially, the Court went beyond “formal equality,” which only calls for the law to treat everyone equally on paper, to “substantive equality,” which calls for the removal of structures that uphold past disadvantage. The law upheld the patriarchal notion that the husband is the default head of the household by making it easy for only women to alter their names. The ruling upholds the requirement that no gender be viewed as the “inferior” partner whose identity is absorbed into another in order to achieve equality in contemporary South Africa.

Traditional authorities’ worries that gender-neutral name could jeopardize cultural succession are also addressed by the decision. The Court made it clear that the ruling “increases options” and guarantees that the law does not enforce patriarchal defaults, rather than compelling anyone to embrace a certain practice. The evolution of “living customary law,” which must conform to the democratic ideals of equality and dignity, depends on this distinction.

Comparative Perspectives: Aligning with Global Norms

When interpreting the Bill of Rights, the Court needs to take international law into account, according to Section 39(1) of the Constitution. The Court determined that South Africa’s stance was becoming more and more isolated and at odds with international human rights norms. Similar gender-based surname restrictions were previously ruled to violate the International Covenant on Civil and Political Rights (ICCPR) by the United Nations Human Rights Committee in Müller and Engelhard v. Namibia. In that instance, the Committee determined that a man’s right to equality in marriage was violated by requiring him to go through a drawn-out administrative procedure in order to take his wife’s name, but women were not subject to such a barrier.

The Court also cited the Burghartz v. Switzerland judgment from the European Court of Human Rights, in which it was determined that a state-imposed requirement that the husband’s surname be the dominant family name violated the rights to nondiscrimination and privacy. The Court also pointed out that Namibia recently passed the Civil Registration and Identification Act of 2024 to address its own discriminatory framework, while neighboring Zimbabwe does not distinguish name changes based on gender. The Constitutional Court brought South African law into line with a global trend toward gender neutrality in family name rights by overturning the BDRA’s regulations.

Remedy: The Path Toward Legislative Neutrality

The Court addressed the issue of remedies under Section 172 after ruling that the provisions were unconstitutional. The Court ordered a 24-month suspended declaration of invalidity in order to avert a regulatory void that would prohibit any spouse from changing their last name while Parliament created new legislation.

Importantly, the Court used an interim “reading-in” remedy to grant prompt relief. Section 26(1) of the BDRA, which permits “a person” to take on their spouse’s surname or resume a previous surname, shall be interpreted in gender-neutral terms pending legislative revision. Using inclusive terminology like “partners” and “spouses” instead of gender-specific titles, the Court purposefully used the language of the Civil Union Act. This guarantees that all marriages and civil unions, including same-sex couples, will immediately benefit from the Act.

However, the Court refused to provide the particular relief requested in relation to the applicant’s child. It reasoned that since Section 25(2) of the Act governs children’s surnames, the parents could use the regular administrative application process for their child since the father could now lawfully alter his surname. This distinction serves as an example of judicial restraint because the Court only intervened to address the particular constitutional infringement that was found, keeping the administrative processes in place where they are still operational. Additionally, the Court mandated that the Minister of Home Affairs reimburse the applicants’ costs, stressing that the state’s failure to address these offending laws was the main reason litigation was required.

III. Conclusion

The landmark ruling in Jordaan and Others v. Minister of Home Affairs and Others upholds equality and dignity in South Africa’s diversified judicial system. The Constitutional Court has acknowledged that family identification is an area of personal autonomy rather than state-mandated gender roles by eliminating the patriarchal defaults embedded in the Births and Deaths Registration Act. The decision is a clear step toward a “non-sexist egalitarian society” in which the law takes into account the realities of contemporary relationships.

A vital and inclusive step toward a future of gender-neutral legislation is provided by the interim reading-in remedy. The 24-month suspension period must now be used by Parliament to implement extensive reforms that bring the BDRA into compliance with the equality guarantee of the constitution. It is maintained that in order to undermine the ingrained patriarchal power relations that continue outside of the courtroom, significant change will necessitate social participation and community education in addition to judicial pronouncements.

In the end, Jordaan’s message to South African couples is very clear: identification and name are important, and the law has finally acknowledged the basic reality that all people, regardless of gender, are entitled to these rights. A constitutional concept of shared identity and legal parity has taken the place of the “lingering ghost” of coverture.

References and Bibliography

Cases

• Biowatch Trust v Registrar, Genetic Resources ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC)
• Burghartz v Switzerland (1994) 18 EHRR 101 (ECtHR)
• Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC)
• Du Toit v Minister of Welfare and Population Development ZACC 20; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC)
• Executive Council, Western Cape Legislature v President of the Republic of South Africa ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC)
• Harksen v Lane N.O. ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC)
• Jordaan and Others v Minister of Home Affairs and Another ZACC 19
• Müller and Engelhard v Namibia (2002) UN Doc CCPR/C/74/D/919/2000 (HRC)
• National Coalition for Gay and Lesbian Equality v Minister of Justice ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC)
• Rahube v Rahube ZACC 42; 2019 (2) SA 54 (CC); 2019 (1) BCLR 125 (CC)
• Satchwell v President of the Republic of South Africa ZACC 18; 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC)
• Scalabrini Centre of Cape Town v Minister of Home Affairs ZACC 45; 2024 (3) SA 330 (CC); 2024 (4) BCLR 592 (CC)

Legislation

• Births and Deaths Registration Act 51 of 1992
• Civil Union Act 17 of 2006
• Constitution of the Republic of South Africa, 1996
• Matrimonial Property Act 88 of 1984
• Regulations on the Registration of Births and Deaths (GN 128 GG 37373, 26 February 2014)

Secondary Sources

• Bertus Preller, ‘Constitutional Court Ends Gender-Based Surname Discrimination: Jordaan and Others v Minister of Home Affairs’ (Family Laws South Africa, 13 September 2025)
• Sinethemba Mncube, ‘Breaking patriarchal chains – a Constitutional court’s landmark judgment’ (2026) March DR 40
• Tasmia Ally and Wisani Maluleke, ‘Your surname? Your choice: Constitutional Court’s judgment on spousal surnames (PH Attorneys, 16 September 2025)
• ‘Jordaan and Others v Minister of Home Affairs and Another (2025) | Surname Equality in Marriage’ (Gimmenotes, 2025) <www.youtube.com/watch?v=example> accessed 15 March 2026