JORDAAN AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS [2025] ZACC 19.

Case Name: JORDAAN AND OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS [2025] ZACC 19.

Court: COSTITUTIONAL COURT OF SOUTH AFRICA,

Date of Decision: 11 September 2025.

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

1. INTRODUCTION

This is a significant landmark case that addresses the systematic patriarchy that has been so entrenched into not just society but the world. It has resulted in consequences that inevitably infringe on the constitutional rights of many, particularly women and how society treats them. South African common law has for many decades since colonialism, adopted the Roman Dutch custom that women, are to assume their husband’s  surnames when they marry in heterosexual relationships.[1] Thus, the relevant provisions regarding surnames and their assumptions were primarily directed towards women and children. However, when it came to men, should they wish to assume their wives’ surnames, would have to make an application to the Director-General with a valid reason as to why they wish to do so.

This process would inevitably reflect the unfair discriminatory, and systematic patriarchy that would discriminate based on gender and infringe on a person’s right to identity and dignity. This case is significant because it has significantly developed South African law when it comes to surnames. Something, some may deem as just another name on their personal records, is a familial tie, a trace to linage, and a part of someone’s identity the relevant bodies and respective provisions has had great influence in controlling.

2. FACTS [2]

The application began in Free State, Bloemfontein High Court with the following parties:

The first and second applicants, Jane Jordaan and Henry van de Merwe, respectfully. The third and fourth applicants are Jess Donnelly-Bornman and Mr. Andreas Nicolaas Bornman. The first and second respondents is the Minister of Home Affairs (Department) and Minister of Justice and Constitutional Development. The Department is responsible, amongst other duties, for the maintenance of the national population register and the birth, marriage and death records.

The first and second applicants, prior to the conclusion of their marriage, agreed that they’d use the first applicant’s surname, Jordaan. As she wished to keep familial ties with her deceased biological parents. Upon registration, the Department advised that the second applicant would be unable to assume the surname. This became an issue as the two wished for their child to bear the maternal surname as well.

The third and fourth applicants also wished for the third applicants surname to be assumed, as she was the only child. However, it would reflect as a double-barrelled surname “Donnelly-Bornman”. The Department advised , in this circumstance .that only the  female spouse may amend her surname.

The inability for the male spouse applicants to amend their surnames to that of their female spouses, and the wife’s inability to keep their familial ties by having their surnames assumed, instituted the proceedings in the High Court. And they sought, among other things, an order declaring that section 26(1)(a) -(c) of the Births and Deaths Registration Act[3] (the Act) and regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths (Regulations)[4] constitutionally invalid. The two discriminated on the grounds of gender. The applicants further sought ancillary relief regarding the assumption of their preferred surnames. `

As this is a matter that involves constitutional invalidity, the Constitutional Court (ConCourt) would need to declare the invalidity of the provision and remedy it. 

3. LEGAL ISSUE(S)[5]:

Legal issue 1:  Whether section 26(1)(a)-(c) of the Act is constitutional.

Legal issue 2: Whether regulation 18(2)(a) of the Regulations is constitutional.

Legal issue 3: What would be an appropriate remedy?

4. ARGUMENTS PRESENTED

 APPLICANT’S ARGUMENT:

 Section 26(1)(a)- (c) of the Act reads:

“Assumption of another surname— (1) Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the

Director-General has authorized him or her to assume that other surname: Provided that this subsection shall not apply when— (a) (b) (c) a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his or her surname, resumes a surname which she bore at any prior time; a married or divorced woman or a widow resumes a surname which she bore at any prior time; and a woman, whether married or divorced, or a widow adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.”

Section 26(2) provides as follows: “At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.”

Regulation 18

“Assumption of another surname— (2) The reasons referred to in section 26(2) of the Act must relate to— (a) a change in the marital status of a woman; (b) assumption by a person of his or her biological father’s surname, where the father has recently acknowledged paternity in terms of regulation 13 or 14; or (c) protection of a person in terms of the Witness Protection Act, 1998 (Act No. 112 of 1998).” (Emphasis added.)

The applicants submitted to the High Court that the provisions of section 26 and the Regulations perpetuated patriarchal gender norms and were unfairly discriminatory based on gender, thus in violation of section 9(3) of the Constitution of the Republic of South Africa. As they affect people’s ability to change their surnames upon marriage or of their own accord. Based on their sex or gender. And maintained their position in the ConCourt. The applicants relied on various precedents and statutes in support of their argument.

The President of the Republic of South Africa v Hugo[6] was one of the cases that supported their submissions to the court, that the Act and the Regulations contravened the overall goal to promote equality and prohibit unfair discrimination.

The applicants further relied on the statement in Wile, where Bozalek J held that to the extent that regulation 18 seeks to create a closed list of reasons for changing one’s surname, it was ultra vires (beyond the powers of the Minister).”[7]

Finally, the applicants referred the Harksen v Lane[8] test for the Act and regulations to meet the equality test.  

 4.2 RESPONDENT’S ARGUMENT[9]:

The respondents did not oppose the applicant’s submission to the High Court as they agreed the provisions perpetuated patriarchal norms and were unfairly discriminatory based on gender and sex. When the matter was brought to the ConCourt, they filed notices of intention to abide. They conceded that the constitutionally invalid provisions should be amended to reflect the constitutional values enshrined in the Constitution. The respondents further agreed to the proposal made by the applicants that the order of constitutional invalidity be suspended, and Parliament be granted a period of two years to remedy the various defects.[10]

Subsequently, should a man assume another surname, it should be in connection to already existing surname.[11]

5. COURT’S RESONING AND ANALYSIS.

When the applicants brought the matter to the ConCourt, it firstly considered the historical context of the patriarchal gender norms and origins as to how the provisions regarding a woman assuming her husband’s surname came to be. This provided for a persuasive perspective in analysing the constitutionally invalid Act and Regulations, when answering the legal issues at hand. Which further aided the decision for the judgement.

A systematic norm that is rooted in colonialism when the first European colonisers came to Africa and introduced their Western values. These values were the seed to transforming many traditional African cultures, that initially allowed for women to keep their surnames after marriage, even having their children adopt the mother’s clan names. The influence of the Western world reinforced the already existing religious, sexist and patriarchal cultural norms. Which made it particularly difficult for women because they were deemed as inferior and less than men and would, after marriage assume their husband’s identity. Their being and rights, or lack thereof equivalent to that of a minor compared to their male spouses/counterparts.

The ConCourt referred to Rahube to substantiate the above statement:

“The perception of women as the lesser gender was, and may still be, a widely held societal view that meant that even where legislation did not demand the subjugation of women, the practices of officials and family members were still tainted by a bias towards women. The prioritisation of men is particularly prevalent in spheres of life that are seen as stereotypically masculine, such as labour, property and legal affairs”[12]

For centuries, women were considered subordinate to their male counterparts/spouses. In the eyes of the law in those periods, they were invisible. A woman was deemed a daughter to her husband [13]; her juridical status was akin to that of a child. Roman Dutch law allowed a man to be entitled to his wife.  Equality between the two genders was essentially non-existent.

In these modern times, specifically in South Africa’s democratic regime, the Constitution has made a progression in abolishing the values that perpetuated the patriarchal gender norms. Therefore, when the ConCourt made its analysis, the first issue it addressed was the issue of equality between the genders. This issue considered section 9 of the Constitution. Which stipulates the following:

• Everyone is equal before the law
• To ensure the full and equal enjoyment of rights and freedoms, necessary legislation and other measures are to be designed to protect and advance persons or categories of persons that have been unfairly discriminated against.
• No person may be unfairly discriminated against whether directly or indirectly.

Unless, established to be fair, discrimination on the grounds of gender, sex, race, etc is considered unfair and is in contravention of section 9(5) of the Constitution.

The landmark case, Harksen has a two-stage enquiry to determine unfair discrimination which the ConCourt utilised in this case.  Firstly, the court needs to determine whether the provision differentiates between people or categories of people, if so whether the reason for such differentiation is for a legitimate government purpose. If not, the provisions may be concluded to be of unfair discrimination. It is evident from the factual background, that there is differentiation based on section 9 of the Constitution’s listed grounds. Whether this was for a legitimate discrimination, would be another enquiry to prove.

The argument the applicants submitted, were valid in addressing the unconstitutional provisions that didn’t allow for male spouses to assume their wife’s surnames and for wives to have their familial ties kept in marriage. And although there were no opposing arguments by the respondent, the ConCourt still needed to be satisfied by the two-stage enquiry during the process. And it found no legitimate government purpose to the differentiation.

6. JUDGEMENT AND RATIO DECIDENDI.

Legal issue 1:  Whether section 26(1)(a)-(c) of the Act is constitutional.

The court deemed this provision as unconstitutional.[14]

Legal issue 2: Whether regulation 18(2)(a) of the Regulations is constitutional.

This regulation governs the assumption of surnames. The ConCourt referred to the court in Minister of Home Affairs v Liebenberg [15] among other authorities, in pronouncing whether a regulation is invalid. The ConCourt held that, it was concerned in striking down provisions and not regulations as the High Court had already declared its unconstitutionality. The ConCourt would therefore not need to pronounce the regulations unconstitutionality.

Legal issue 3: What would be an appropriate remedy?

There are various remedial options for invalid provisions at the ConCourt’s disposal. The first option would be to temporarily suspend the declaration of invalid. The purpose of this remedy is to show respect to the separation of powers; and will allow Parliament to fix the defect. Should Parliament fail to fix the defect within the stipulated period, the declaration will come into effect.

During the suspension period, the applicants request for a reading-in remedy to the provisions of the Act in the interim of Parliament fixing the defect. Which would allow for spouses to assume the other spouses surname upon their marriage. The ConCourt held that to avoid further discrimination in the reading-in, it will employ gender neutral terminology, as it would allow for inclusion of all identities.

Ratio decidendi: The court held that the provisions of the Act are unconstitutional, as they unfairly discriminated against the grounds of gender and sex,

7. CRITICAL ANALYSIS AND EVALUATION.

This case is a mirror that reflects the historical systematic patriarchy and atrocities women have faced for centuries and continue to face in modern times. Where woman, once married would not be considered and were invisible to society and in the eyes of law.  The submissions of this case have impacted the developments in South African marital law and the ability of a woman’s surname to be assumed by her husband, and the ability of the husband to assume his wife’s surname should the two parties decide to.

The judgement remedied the defective provisions well by accepting the applicants request for a reading-in in the interim and employing gender-neutral terminology that will be inclusive to all identities. This will avoid any further issues that may arise from the lacuna until Parliament fixes the defects.

8. CONCLUSION

To conclude, this case is monumental in contributing to the equality statuses of women in the country. Although there has been steadfast progression in ensuring there are equal rights between men and women, the realities is that there still is much that needs to be done. There are provisions that do not offer the same protection and or enjoyment to women as it would to men. It is significant because it emphasises provisions of section 9 of the Constitution, that everyone is equal before the law and should be able to enjoy the freedoms and rights that come with it. This judgement, by allowing Parliament to fix the defective Regulation and declaring the provisions of the Act unconstitutional provides for a remedy to those who have faced similar instances as the applicants. And to avoid further occurrences as it will recognise women’s identities in marriage, and allow for the free will of a man to assume his wives surname should he wish to, without having to apply to the Director-general and satisfy the director with reasons as to why.

BIBILIOGRAPHY

Case law

Harksen v Lane 1997 (4) SA 1 (CC).

Jordaan and Others v Minister of Home Affairs and Others [2025] ZACC 19

Minister of Home Affairs v Liebenberg 2001 (11) BCLR 1168 (CC).

President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) 1997 (4) SA 1 (CC)

Rahube v Rahube 2019 (1) BCLR 125 (CC)

Statutes and statutory instruments

Births and Deaths Registration Act 51 of 1992.

Regulations on the Registration of Births and Deaths GN 128 GG 37373, 26 February 2014.

The Constitution of the Republic of South Africa, 1996.

[1] [2025] ZACC 19 [25].

[2] [2025] ZACC 19 [9-13 ].

[3] Act 51 of 1992.

[4] GN 128 GG 37373, 26 February 2014.

[5]  [2025] ZACC 19 [20].

[6] 1997 (4) SA 1 (CC).

[7] [2025] ZACC 19 [14].

[8] 1997 (4) SA 1 (CC).

[9] [2025] ZACC 19 [18].

[10] [2025] ZACC 19 [19].

[11] [2025] ZACC 19 [58].

[12] Rahube v Rahube 2019 (1) BCLR 125 (CC) [ 23].

[13] [2025] ZACC 19 [27].

[14]  [2025] ZACC 19 [ 83].

[15] 2001 (11) BCLR 1168 (CC).