Authored By: Asive Zamantlele Mathenga
University Of Fort Hare
This article provides a critical analysis of the landmark Constitutional Court judgement in Jordaan and Another v Minister of Home Affairs and Others [2024] ZACC 511, which declared the gendered surname provisions in South African marriage law constitutionally invalid. This decision is a necessary step towards section 9 and 10 of the Constitution achieving equality and dignity, as enshrined on. This decision supports the transformation of South African family law by challenging a long-standing patriarchal norm. This ruling highlights its consistency with established legal principles and aligns with key precedents like in the case of Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC), where the court established that marriage law must evolve to promote human dignity, equality and freedom2 and in the case of Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC) where the court affirmed that gender- based doctrine have no place in modern South African law3. The decision in the case of Jordaan goes beyond fixing a process issue. It pushes marital partnership towards equality and free choice, offering important guidance for legislative changes ahead.
INTRODUCTION
This article examines the recent transformative judgement of the Constitutional Court in Jordaan and Another v Minister of Home Affairs and Others [2024] ZACC 514, which marks a crucial shift from presumption to choice, demanding a rethink of what marriage means through the lens of equality in the Constitution. The phrase “from presumption to choice “encapsulates the profound constitutional shift mandated by the Jordaan judgement. Presumption refers to a legal and social assumption embedded in statute. It is presumed that family identity was patriarchally determined, reinforcing the idea that a women’s identity was derivative and a man’s identity was immutable. In the case of Jordaan and Another v Minister of Home Affairs, the court found that section 26 of the Births and Deaths Registration Act institutionalised this unfair presumption, thereby violating the constitutional rights to equality and human dignity5. The issue at hand is crucial in today’s legal landscape, it is about real gender equality in private and family life. In a constitutional democracy, the law is expected to dismantle historical hierarchies rather than perpetuate them. The law should promote gender equality by removing outdated rules that reinforce patriarchal norms. Therefore, this article contends that the Jordaan judgement significantly upholds constitutional guarantees of the right to equality and the right to dignity.
This article will:
1) examine the Court’s rationale for invalidating the gender-biased legislative framework
2) Place a decision of removing gender stereotype from South African family law, referencing cases like Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) and Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC).
3) Offer recommendations for upcoming legislative reforms and implementation.
MAIN BODY
1 Legal framework
1 1 The Governing Constitutional Provisions Two core rights formed the substantive heart of the challenge in Jordaan and Another v Minister of Home Affairs and Others:
- Section 9 – The Right to Equality: This provision is the cornerstone. Section 9(1) guarantees that “Everyone is equal before the law and has the right to equal protection and benefit of the law”6. Crucially, Section 9(3) “prohibits unfair discrimination, directly or indirectly on grounds like sex, gender, age, sexual orientation, and more”7. Any law that is inconsistent on these listed grounds is unfair and shall be declared invalid. Section 26 of the Births and Deaths Registration Act was facially discriminatory on the ground of sex/gender. It created different legal pathways based solely on whether one was a husband or a wife.
- Section 10 – The Right to Human Dignity: This right guarantees that “Everyone has inherent dignity and the right to have their dignity respected and protected.” In the context of family law, dignity encompasses personal autonomy and the freedom to define one’s own identity within intimate relationships, free from state-imposed stereotypes that diminish one’s sense of self-worth. By reinforcing outdated assumptions about marriage and family identity, the law undermined the dignity of men who wanted to adopt their wife’s surname. At the same time, it diminished women’s dignity by suggesting that their surname was merely provisional and expected to be altered.
Before the Jordaan decision, South Africa’s law on marital surnames reflected formal inequality, embedding patriarchal norms in administrative procedures. Section 26 of the Births and Deaths Registration Act 1992, which primarily dealt with “the assumption of another surname but provided exceptions foe women changing surnames after marriage, divorce, or widowhood, allowing them to revert to a prior surname or add a former one”8. The law did not just regulate names, it entrenched a gender stereotype about whose identity mattered more in a marriage. The court recognized this as a violation of both equality and dignity because it imposed unfair assumptions on personal choices that should be free and equal.
1 2 Supportive Jurisprudence.
1 2 1 In the case of Jordaan, the Constitutional Court grounded its reasoning in the earlier precedent of Minister of Home Affairs v Fourie. In Fourie, the Court emphasized that marriage under the common law could not remain fixed in tradition but had to evolve to uphold equality and dignity for same-sex couples9. Building on that principle, Jordaan extended the same transformative approach to the statutory rules governing marital surnames. Together, these rulings underscore that marriage is not a static institution but a dynamic one, requiring ongoing interpretation whether through common law or legislation in ways that reinforce constitutional values and dismantle entrenched inequalities, whether rooted in sexual orientation or gender.
1 2 2 The Jordaan ruling draws on the principle of the state’s positive duty established in the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC). In that earlier case, the Constitutional Court confirmed that the government has a responsibility to amend laws that undermine dignity and equality in marital relationships most notably by enacting legislation to recognise Muslim marriages10.
1 2 3 The Constitutional Court’s reasoning in Bhe v Magistrate and Others 2005 (1) SA 580 (CC), laws or customs grounded in gender stereotypes cannot be reconciled with the equality clause serves as a key analogy for the Jordaan decision. In Bhe, the Court struck down the rule of male primogeniture in customary law because it entrenched the notion that only men could inherit, thereby discriminating against women11. Drawing on this precedent, the Court in Jordaan applied the same constitutional principle to statutory surname rules, specifically the presumption that only a wife’s surname is subject to change upon marriage. The judgment reinforces that any legal framework whether derived from custom, common law, or legislation that imposes gender-based assumptions about identity or roles is constitutionally flawed and must be set aside for violating equality and human dignity.
1 2 4 In Van der Merwe, the Constitutional Court struck down the outdated common law rule that erased a married woman’s independent legal identity by subsuming it under her husband’s, finding it incompatible with constitutional equality12. The Jordaan case applied the same reasoning to statutory law, targeting provisions in the Births and Deaths Registration Act that assumed a wife’s surname was changeable while a husband’s surname was fixed. By doing so, Jordaan broadened Van der Merwe’s principle, both discriminatory common law doctrines and statutory rules that reinforce patriarchal hierarchies in marriage must be removed to protect equality and dignity.
1.3 International Law
1 3 1 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16
Article 16 obliges states “to guarantee equality between men and women in marriage and family relations. This includes equal rights to enter marriage, choose a spouse, and decide on family matters such as names, property, and responsibilities”13.
It relates to the case of Jordaan because the discriminatory surname rules in South Africa’s Births and Deaths Registration Act also violated this principle by giving men and women unequal rights in marital naming. It also relates by striking down these provisions, the Constitutional Court aligned South African law with its international duty under CEDAW to ensure that marriage laws do not entrench gender stereotypes or diminish women’s autonomy.
Therefore, this landmark case shows South Africa’s compliance with its treaty obligations, reinforcing that constitutional equality must be interpreted consistently with international human rights standards.
1 3 2 African Charter on Human and Peoples’ Rights – Article 2
Article 2 guarantees that “every individual is entitled to enjoy the rights and freedoms in the Charter without discrimination, including on the basis of sex”14
This article relates on this landmark case because the surname provisions discriminated based on gender by making it easier for women to change their names than men, thereby treating spouses unequally. The Court’s invalidation of these provisions reflects the Charter’s demand that laws must not perpetuate sex-based discrimination. Jordaan thus strengthens South Africa’s role as a constitutional democracy that respects both domestic and regional human rights commitments.
By referencing CEDAW and the African Charter, the Jordaan judgement is not just a domestic constitutional victory, it situates South Africa within a global and regional movement to dismantle patriarchal norms in family law. It shows that constitutional rights to equality and human dignity are reinforced by international obligations, making reform both a national and international imperative. This judgement is a step towards a society where the law does not presume but empowers choice.
2 JUDICIAL INTERPRITATION: THE LANDMARK RULING IN JORDAAN V MINISTER OF HOME AFFAIRS
2 1 Summary of facts and reasoning
A married couple took their case to the Constitutional Court, challenging the law that allowed wives to easily adopt their husband’s surnames but required husbands to undergo a formal, costly name change process to take their wives ‘surname. The Court, led by Madlanga, ruled in their favor, finding the law discriminatory on the grounds listed on section 9(3) of the Constitution. The law violated their rights to equality and dignity under section 9 and 10 of the Constitution, respectively. The state also did not justify the limitation clause under section 36 of the Constitution which says that “any limitation on the right in the Bill of Rights must be reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom”15. The Constitutional Court confirmed the order of constitutional invalidity of the relevant sections of the Births and Deaths Registration Act and Identification Act. It upheld the High Court’s finding that the gender-based distinction was unfairly discriminatory and violated human dignity.
2 2 Importance of this case
Jordaan judgement marks a key moment in South Africa’s Constitutional transformation, applying equality and dignity, breaking down gender inequity in marriage laws, advancing substantive equality and personal choice.
2 3 Critical evaluations
The Jordaan case judgement has limitations like the delay in reform which is a 24-month suspension leaving the applicants in uncertainty and fixing law does not shift deeper in social/cultural norms around marital naming defaults.
3 CRITICAL ANALYSES: LOOPHOLES, PRACTICAL CHALLENGES, AND THE LIMITS OF REFORM
The Jordaan judgement faces implementation challenges. The 24-month suspension creates a gap where rights are recognised but processes are not in place, forcing husbands to litigate again. Success depends on Home Affairs updating systems, training stuff, and raising public awareness. However, legal equality may be undermined by persistent cultural preferences for traditional surname practices.
4 RECENT DEVELOPMENTS
Minister of Home Affairs has confirmed that the Department is drafting the required Amendment Bill to the Births and Deaths Registration Act. No draft bill has been published for public comment yet, but the 24-month deadline (December 2026) ensures this will be a parliamentary priority. Key debates are expected around the precise gender-neutral wording of the new provision and whether it will explicitly provide for options beyond simple assumption, such as hyphenation or entirely new combined surnames.
The Jordaan judgement sparked mixed reactions in South Africa. Progressive media for example Daily Maverick and News24 praised it as a win for gender equality, while conservative outlets saw it as attacking family values. On social media some celebrated choice, while others are worried about changing norms. Many people think the change is already in effect, showing a need for a public awareness.
6 BEYOND THE JUDGEMENT: RECOMMANDATIONS FOR LEGISLATIVE REFORM AND LEGAL PRACTICE
6 1 For the Legislature which is the Parliament
6 1 1 Prioritise and Enact Clear Gender-Neutral Language: Finalise and pass the Amendment Bill to the Births and Deaths Registration Act well before the December 2026 deadline. The new section must use the term “spouse” and explicitly provide that either spouse may, upon marriage, assume the other’s surname, a hyphenated combination, or keep their own, through an identical, simplified administrative process. Secondly, it must mandate a Public Awareness Campaign by distributing resources for the Department of Home Affairs to run a nationwide campaign upon enactment, clearly informing the public of the new, equal rights and procedures.
6 1 2 Avoid Creating New Bureaucratic Hurdles: The reform must ensure the administrative process for assuming a spouse’s surname is identical for all genders. The goal is to replicate the simplicity of the old process for wives but make it universally applicable. It should be a simple administrative update upon presentation of a marriage certificate, not a formal “change of name” application.
6 1 3 Clarity for Non-Binary and Transgender Spouses: In drafting the new law, Parliament should be mindful of the constitutional rights of all gender identities. The language must be inclusive and not inadvertently exclude those who find outside the gender binary. Consulting with LGBTQI+ advocacy groups (like the Legal Resources Centre or Iris Institute) during the drafting process is crucial
6 2 For the Department of Home Affairs which is the executive
The department must get their system ready by fixing IT, update forms, and train staff to apply new rules fairly. The department must also issue interim directive for fair surname change processing.
6 3 For the Judiciary
Judiciary should adopt a Strict Supervisory Role where courts should be prepared to hear urgent applications for mandamus (a court order compelling action) if the Department does not follow the interim order or the final legislation. They must also interpret the new law purposively to favour choice and autonomy. For Civil Society and Legal Practitioners, NGOs and law clinics must check implementation, help individuals facing unlawful resistance, and provide clear public guides. Legal practitioners must integrate this new equality into matrimonial advice and antenuptial contracts.
7.CONCLUSION
In conclusion, this analysis has argued that the Constitutional Court’s judgement in Jordaan v Minister of Home Affairs is a critical enforcement of substantive equality, successfully dismantling a statutory presumption that entrenched patriarchal norms within marriage. The shift from a gendered legal rule to a framework of autonomous choice is a non-negotiable requirement of the constitutional guarantees of dignity and equal protection. The importance of this issue lies in its demonstration that transformative constitutionalism must permeate the most personal spheres of life, liberating individual identity from state-sanctioned stereotypes. As South Africa awaits the required legislative reform, one must ask: Will this landmark ruling remain a symbolic victory, or will it catalyse a broader societal reimagining of family, partnership, and true equality in practice? The answer will measure the depth of our constitutional commitment.
8.BIBLIOGRAPHY
8 1 Case laws
8 1 1 Jordaan and Another v Minister of Home Affairs and Others [2024] ZACC 51[12-15] 8 1 2 Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) 8 1 3 Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC)
8 1 4 Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC).
8 1 5 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC)
8 2 Journals
8 2 1 The Convention on the Elimination of All Forms of Discrimination Against Women 8 2 2 The African Charter on Human and Peoples’ Rights
8 3 Legislation
8 3 1 The Constitution of Republic of South Africa, 1996.
8 3 2 Births and Deaths of Registration Act, 1969 (Act No. 18 of 1969)
8 4 News reports.
8 4 1 Daily Maverick
8 4 2 News24
1 Jordaan and Another v Minister of Home Affairs and Others [2024] ZACC 5.
2 Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC).
3 Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC).
4 Jordaan and Another v Minister of Home Affairs and Others [2024] ZACC 5.
5 Jordaan and Another v Minister of Home Affairs and Others [2024] ZACC 5 [para 12-15]
6 Section 9(1) of the Constitution of the Republic of South Africa, 1996.
7 Section 9(3) of the Constitution of the Republic of South Africa, 1996.
8 Section 26 of the Births and Deaths of the Registration Act, 1992.
9 Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC)
10 Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC).
11 Bhe v Magistrate and Others 2005 (1) SA 580 (CC).
12 Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC).
13 Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women.
14 Article 2 of the African Charter on Human and Peoples’ Rights.
15 Section 36 of the Constitution of the Republic of South Africa,1996.
