Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19; 2025 (11) BCLR 1249 (CC); 2025 (6) SA 323 (CC), Constitutional Court of South Africa decided 11 September 2025.

Case Name: Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24)  [2025] ZACC 19; 2025 (11) BCLR 1249 (CC); 2025 (6) SA 323 (CC),  Constitutional Court of South Africa, decided 11 September 2025. 

Judgment delivered by Theron J (unanimous), with the bench comprising Madlanga ADCJ,  Dambuza AJ, Kollapen J, Majiedt J, Mhlantla J, Opperman AJ, Rogers J, Theron J, and Tshiqi  J. 

Introduction 

Jordaan and Others v Minister of Home Affairs and Another is an important case in South  African constitutional law, especially for gender equality and dignity in family law. The case  challenged old patriarchal ideas in laws about surname changes after marriage. By declaring  parts of the Births and Deaths Registration Act 51 of 1992 unconstitutional for gender  discrimination, the Constitutional Court supported the Constitution’s goal to remove gender  stereotypes and promote equality. This decision expands protection for personal identity  choices in marriage for everyone, including men, women, and same-sex couples. It also aligns  South African law with international human rights standards that value autonomy and non discrimination. The judgment is notable for confronting colonial and patriarchal influences in  administrative law and for advancing gender equality in both private and public life. 

Facts of the Case 

The applicants were two married couples who wanted to change their surnames in ways then not permitted under South African law. The first couple, Jana Jordaan and Henry van der  Merwe, were in a heterosexual marriage. Jana wanted Henry to take her surname, “Jordaan,”  to keep her family name alive. However, the Department of Home Affairs would not register  this change automatically because the law only allowed wives to take their husbands’ surnames  without extra approval. 

The second couple, Jess Donnelly-Bornman and Andreas Nicolaas Bornman, also in a  heterosexual marriage, wanted to use a combined or hyphenated surname that included Jess’s  maiden name, “Donnelly,” to keep family connections. The Department also refused this  request on equal terms, requiring men to provide proof of “good cause” or creating obstacles  that women did not face.

These refusals were based on section 26(1)(a)–(c) of the Births and Deaths Registration Act 51  of 1992 and Regulation 18(2)(a). The Act allowed women to take their husband’s surname  automatically after marriage, after divorce or widowhood, or to keep their maiden name. Men,  however, did not have the same automatic right to take their wife’s surname. Any change for  men needed special approval from the Director-General, which was often denied without a  strong reason. The law also did not properly include same-sex spouses, keeping gender-based  differences in place. 

The applicants approached the High Court of South Africa, Free State Division, in  Bloemfontein, seeking a declaration that the law was unconstitutional. The High Court agreed,  finding the gender discrimination unfair. The case then went to the Constitutional Court for  confirmation, with the Ministers of Home Affairs, Justice, and Constitutional Development as  respondents. The respondents did not oppose the request, acknowledging that the law was  outdated and grounded in colonial and Roman-Dutch patriarchal ideas. 

Legal Issues 

The primary legal issues framed by the Court were: 

Issue 1: Whether section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992,  and related Regulation 18(2)(a), differentiate irrationally on the ground of gender in violation  of section 9(1) of the Constitution? 

Issue 2: Whether the impugned provisions unfairly discriminate on the ground of gender, in  contravention of section 9(3) of the Constitution, by perpetuating patriarchal norms that assume  a wife’s surname is subordinate and deny equivalent surname choice to men and same-sex  spouses? 

Issue 3: Whether the provisions infringe the right to human dignity under section 10 of the  Constitution by impairing personal autonomy and reinforcing harmful gender stereotypes? 

Arguments Presented 

Applicants’ Arguments: 

The applicants contended that the provisions entrenched patriarchal gender norms derived from  colonial and common-law traditions, where the husband was the head of the household, and  the family name followed his line. They argued that automatic surname assumption was granted  only to women who assumed their husbands’ surnames, while men faced discretionary hurdles 

lacking a rational basis. This differentiation violated section 9(1) equality (rationality test) and  section 9(3) (unfair discrimination on gender). They invoked the Harksen v Lane test, asserting  no legitimate government purpose justified the distinction, as administrative convenience could  not override equality. 

Further, the provisions impaired dignity under section 10 by subordinating women’s identities  and denying men autonomy in identity formation. Reliance was placed on precedents  emphasising substantive equality, such as Bhe v Magistrate, Khayelitsha, and international  standards rejecting gender stereotypes. The applicants sought confirmation of invalidity, with  an interim reading-in for a gender-neutral application. 

Respondents’ Arguments: 

The respondents, represented by the Ministers of Home Affairs, Justice, and Constitutional  Development, did not oppose the application. They conceded that the provisions were outdated,  rooted in patriarchal assumptions, and inconsistent with constitutional equality and dignity  guarantees. No substantive counter-arguments were advanced to defend the gender  differentiation; instead, they agreed that the law required reform to align with modern gender  neutral principles. 

Court’s Reasoning and Analysis 

The Constitutional Court, in a unanimous decision penned by Theron J, agreed with the High  Court’s finding that the law was invalid. Using a two-step equality analysis, the Court first  found that the law treated men and women differently without a good reason, which  contravened section 9(1) of the Constitution. Allowing women to change their surname  automatically supported the idea that the family name should be the husband’s, while men  needed special approval. This difference had no real administrative or policy purpose and failed  the rationality test. 

Under section 9(3) of the Constitution, the Court found the discrimination unfair. In Harksen  v Lane NO, the Court considered factors such as gender, dignity, autonomy, and stereotypes.  The law assumed women’s surnames could change easily and were less important. This harmed  women by devaluing their family names and harmed men by limiting their choices. Same-sex  couples were also affected. The Court emphasized that dignity includes personal identity, such  as naming, and that old patriarchal rules undermine genuine equality. Quality v Minister of  Home Affairs rejected stereotypes, while historical context highlighted pre-colonial fluidity in  African naming practices versus colonial rigidity. The limitation under section 36 was  unjustified, as less restrictive means (gender-neutral provisions) were available. 

No concurring or dissenting opinions arose, reflecting consensus on the transformative role of  equality jurisprudence. 

Judgment and Ratio Decidendi 

The Court confirmed the order of constitutional invalidity. Section 26(1)(a)–(c) of the Births  and Deaths Registration Act was declared unconstitutional to the extent it discriminates on  gender by failing to allow spouses to assume each other’s surnames, resume prior surnames, or  adopt combined forms equally. 

The declaration of invalidity was suspended for 24 months to permit parliamentary amendment.  In the interim, the Court ordered reading-in of gender-neutral language, enabling any spouse  to assume the other’s surname automatically, with immediate effect. Costs were awarded  against the first respondent. 

The ratio decidendi is that statutory provisions permitting automatic surname assumption upon  marriage only for wives, while denying equivalent rights to husbands and same-sex spouses,  constitute irrational differentiation and unfair gender discrimination under sections 9(1) and  9(3) of the Constitution, and infringe dignity under section 10, as they perpetuate patriarchal  norms without legitimate justification; spouses must enjoy equal autonomy in surname choices  to uphold substantive equality. 

Critical Analysis 

Significance of the Decision 

This judgment constitutes a significant advancement. This judgment is an important step  forward in equality law and clearly shows how patriarchal ideas have shaped administrative  and family law. It settles questions about gender-neutral surname rights after marriage. The  Court moved away from old rules that favoured male family names. By giving equal rights to  all spouses, the decision supports real, not just formal, equality. It also aligns South African  law with international standards, such as the Convention on the Elimination of All Forms of  Discrimination Against Women (CEDAW), which rejects gender stereotypes. The ruling  impacts thousands of couples seeking surname changes by streamlining procedures for men,  women, and LGBTQ+ spouses and reducing administrative obstacles. The decision affects identity documentation, with implications for employment, banking, and educational records.  Public policy is anticipated to move toward gender-neutral family law, with Parliament  mandated to enact comprehensive legislative reforms. Initial commentary indicates a positive  reception, though implementation challenges may arise during the period of suspended  invalidity. 

Critical Evaluation 

The Court’s reasoning is strong because it focuses on real equality and dignity, avoids narrow  legal interpretations, and considers history. Strengths include the unanimous decision and the  temporary relief that stops ongoing harm. However, the Court did not discuss customary law  in much detail, even though patrilineal naming is still common in some communities. The  judgment could have addressed the conflict between equality and cultural traditions more.  Some critics might say the decision makes identity too simple by focusing on personal choice  rather than family lineage, but the Court’s emphasis on autonomy is clear. Other options, like  removing all automatic surname rules, were possible but would not have changed the law as  much. 

Conclusion 

Jordaan and Others v Minister of Home Affairs and Another clearly struck down gender discriminatory surname rules in the Births and Deaths Registration Act, supporting equal  choice for all spouses in shaping their identities. The Court found that these laws kept old  patriarchal ideas alive and broke the Constitution’s promises of equality and dignity. The main  lesson is that equality protections apply to everyone, not just one gender. This judgment is a  major step in ending patriarchal rules in family law and promoting personal choice and real  gender equality. While Parliament still needs to update the law, questions about how to  incorporate customary law and broader identity rights may arise in future cases as South  Africa’s Constitution continues to evolve.

Reference(S):

• Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
• Births and Deaths Registration Act 51 of 1992, s 26(1)(a)–(c).
• Constitution of the Republic of South Africa, 1996, ss 9, 10.
• Harksen v Lane NO 1998 (1) SA 300 (CC). 
• Bhe v Magistrate, Khayelitsha 2005 (1) BCLR 1 (CC). 
• Constitution of the Republic of South Africa Act 108 of 1996.