Authored By: Mbuso Mahlangu
University Of Free State
Introduction
When Mr Van Der Merwe went to court to take his wife’s surname, he was told it was impossible because the law in South Africa assumed that women would take their husbands’ surnames. Under the law, a woman was expected to adopt her husband’s surname. Even in customary and other marriages, the bride assumed the groom’s surname. The Constitutional Court declared this discriminatory provision unconstitutional in September 2025, so that the law governing marriage in South Africa no longer reflects colonial patriarchy.
This piece focuses mainly on the position before the legislature amended the Births and Deaths Registration Act. In some parts, the analysis compares the previous and current positions, with reference to the doctrine of precedent and the primary legislation applicable. The intention of this piece is also to establish the significance of a surname and to reflect transformative constitutionalism, through identifying colonial infringements and weighing them against the principles of the Constitution.
Before 11 September 2025
Section 26(1)(a)-(c)
The Births and Deaths Registration Act makes provision for marriages. The provision in particular deals with names and forenames in South Africa.1 Previously, only women assumed the surnames of their husbands.2 The provision states that, at the conclusion of a marriage,3 a woman assumes her husband’s surname, irrespective of whether the marriage is a customary, Islamic, Indian or civil marriage.4 However, a woman could retain her own surname only through the death of her spouse or if she was divorced.5
The second part of the provision made no direct application to men assuming the surnames of their partners. It stated further that women had more options.6 Firstly, after assuming the surname of a husband, a woman could retain it following his death. Secondly, after a divorce, she could retain her original surname or assume another person’s surname should she marry once more.7
Jordaan and Others v Minister of Home Affairs
In this matter, the applicants were Ms Jane Jordaan, Mr Henry Van Der Merwe, Ms Jess Donnelly Bornman and Andreas Nicholas Bornman.8 The respondents were the Minister of Home Affairs and the Minister of Justice and Constitutional Development. Ms Jordaan reached an agreement with Mr Van Der Merwe that he would assume her surname.9 When they were about to register their marriage, the Department of Home Affairs informed both of them that Mr Van Der Merwe could not assume Ms Jordaan’s surname. The applicants also wished their children to assume the surname of their mother.
Ms Bornman, for her part, wished to keep her surname after her marriage.10 She wanted to retain the ties between herself and her parents, as she is their only child, and she intended for the surname to be reflected alongside her name. Yet the Department advised that only a female could assume or amend her surname.11 Following that, the applicants instituted proceedings in the High Court seeking an order declaring a provision of the Act unconstitutional, and an amendment of the regulations so that the provision would not discriminate on the basis of gender.
In its analysis, the Constitutional Court applied the Constitution of the Republic of South Africa. It stated that section 26(1)(a)-(c) differentiated between men and women.12 In addition, the provision amounted to unfair discrimination based on gender, which is inconsistent with section 9 of the Constitution.13 The section states that everyone is equal before the law and has the right to equal protection and benefit of the law. It adds that equality includes the full and equal enjoyment of all rights and freedoms.14 On that note, section 9(3) of the Bill of Rights prohibits unfair discrimination on the ground of gender.
The Court also highlighted section 172(1), which makes provision for the decision of constitutional matters.15 It vests the courts with the power to declare law or conduct invalid and unconstitutional to the extent of its inconsistency with the Constitution. It further states that any order made must be just and equitable.
The Court considered the approach in Harksen v Lane, which is a two-stage test for constitutional validity. The first stage asks whether the provision in question differentiates between people or categories of people and, if so, whether that differentiation bears a rational connection to a legitimate government purpose. If there is no rational connection, the differentiation is unconstitutional. If there is a rational connection, the enquiry moves to the next stage, which asks whether the differentiation amounts to discrimination and, if so, whether it is unfair.
The Court further pointed out the factors to be considered in determining unfairness. First is the position of the complainants and whether they were disadvantaged in the past. Second is the nature and extent of the interest or right affected. Lastly, there is whether the discrimination amounted to an impairment of the complainants’ human dignity.
The Constitutional Court found that section 26(1)(a)-(c) is unconstitutional and inconsistent with the provisions of the Constitution. It ordered that the words “any person” be reflected in section 26(1)(a)-(c) in place of “a woman”. The Court stated that the provision limited the assuming of surnames to women only. Following section 172(1), the Court made the provision gender neutral, so that going forward any person may assume the surname of their spouse. In reasoning that the provision discriminated on the basis of gender, the Court found no legitimate purpose for it.
The meaning of surnames
According to Moshoeshoe and Ntaote, a surname bears social recognition and kinship and is an ingrained symbol rather than just an identifier for administrative convenience.16 The purpose of a surname, they say, is to indicate the relation of a child to parenthood and to the family through identifying clan membership or family.
In contrast, Moshoeshoe and Ntaote use the following language for the meaning of names.17 Firstly, names represent personality, ancestry, family values, religion and community. All of these are essential components of identity. One of the most personal ways to express oneself is to control the power to select or keep one’s last name.18 Thus, both concluded that the invalidation of section 26(1)(a)-(c) was profound.
In many African societies, children normally assumed their mother’s surname rather than the clan names of their fathers.19 This implies that the patriarchal surname rule was enforced by Roman-Dutch law, colonial institutions and missionary influence rather than being native. Many kinship systems also included matrilineal customs in some communities, which were frequently used to structure identity and ancestry.
On the other hand, marriage under Roman law placed women under the hand of their husbands. As a result, the legal identities of women were subsumed under those of their husbands as heads of the home. The same idea was supported by the English common-law notion of coverture, which rendered wives almost totally legally invisible.
According to Moshoeshoe and Ntaote, the ruling in Jordaan is an important step in the continuous dismantling of South Africa’s patriarchal legal systems. The Court confirmed that dignity and equality extend into the most private areas of family life by invalidating provisions that favoured male identity and devalued women’s surnames.
After 11 September 2025
The provision was amended to provide that any person can assume their spouse’s surname. Husbands can now take their wives’ surnames after marriage. Jordaan became binding precedent, meaning that any court from 11 September 2025 onwards must follow the decision handed down in this matter. After this judgment, the law treats the assuming of surnames as a matter of equality and personal dignity.
A man who desires to take his partner’s surname can now do so. Couples are also free to have what we call double-barrelled surnames, where each partner assumes the other’s name while retaining their own. This promotes the retention of family names and the sense of belonging to a particular clan.
Conclusion
To conclude, the Constitutional Court made a decision that bears substantive fairness and the progressive realisation of fundamental human rights. The judgment is significant because South Africa is a democratic state that promotes equality and dignity. The decision in Jordaan upholds the principles of equality, and it is evident from the Court’s analysis that every law inconsistent with the Constitution must be invalidated. The judgment is in line with the spirit, purport and objects of the Bill of Rights.
Previously, the registration provision infringed on the rights of men, who could not assume their wives’ surnames, and restricted women from having their surnames carried forward as men’s could be. It is evident that a surname bears much more significance than just a name, and it is said to be someone’s honour and pride. With that being said, the intention to retain, and not assume, a husband’s surname is profound, and it gives women the same privilege as men. It is now fair and just that men can expressly or tacitly assume surnames.
This piece aimed to analyse legal change over a period of time, from being a colonial state to being a country that promotes equality. It is intended as an addition to research on this matter and on others dealing with equality.
Footnote(S):
1. Births and Deaths Registration Act 1992, s 26
2. ibid
3. ibid
4. ibid
5. ibid
6. ibid
7. ibid
8. Jordaan and Others v Minister of Home Affairs and Another 2025 ZACC 19
9. ibid
10. ibid
11. ibid
12. ibid
13. ibid
14. ibid
15. ibid
16. Bokang Moshoeshoe, *What’s in a name? Dismantling patriarchy, advancing equality and reclaiming identity in Jordaan v Minister of Home Affairs, 26 Afr. Hum. Rts. L.J. 1 (2026)
17. ibid
18. ibid
19. ibid
Bibliography
Constitution of the Republic of South Africa 1996
Births and Deaths Registration Act 1992
Harksen v Lane NO [1997] ZACC 12
Jordaan and Others v Minister of Home Affairs and Another 2025 ZACC 19
Moshoeshoe, Bokang, ‘What’s in a name? Dismantling patriarchy, advancing equality and reclaiming identity in Jordaan v Minister of Home Affairs’ (2026) 26 African Human Rights Law Journal 1
