Authored By: Riemano Titus
University of Fort Hare
CASE NAME:
Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19
Case Overview
Court: Constitutional Court of South Africa
Date of Judgement: 11 September 2025
Key Legislation: Section 26 (1)(a) – (c) of the Births and Deaths Registration Act 51 of 1992 and Regulation 18 (2)(a)
Introduction
The Jordaan case is a cutting-edge landmark case in South African family and constitutional law. For decades, Sections 26 of the Births and Deaths Registration Act [1]functioned on a patriarchal default: it authorised women to assume their husbands ‘surnames or join them without formal application to the Director-General but refused men the same administrative ease[2]. This case disputed the statutory assumption that only women should change their names upon marriage, highlighting significant victory for gender neutrality and dismantling of “old-order legislative sexism’’. The judgment (Theron J, unanimous bench) affirms equality (section 90 and dignity (section 10), finds rational under the limitations clause (section 36), and defers the declaration for 24months to allow statutory repair, coupled with an immediate, inclusive reading-in to prevent ongoing discrimination[3].
The Facts:
On 11 September 2025, Justice Theron made a constitutional landmark judgement on promoting the right that a husband may adopt the surname of his wife. In the one instance whereby the Applicants, Jana Jordaan and Henry van der Merwe sought to register their marriage with the van der Merwe assuming the surname of Jordaan preserving her family lineage, while Jess Donnely-Borman and Andreas Nicolaas Borman sought a double-barrelled surname meaning a joined Donnely-Borman surname[4]. In contrast the Respondents, Department of Home Affairs declined it, stating that section 26(1)(a) -(c) of the Births and Deaths Registration Act 51 of 1992 that granted only women upon marriage such altercations[5].
Legal Issue:
The Court addressed three primary grounds of justifications:
- Right to Equality (Section 9): The law discriminated based on gender by refusing the right of the husband to adopt the surname of the wife[6].
- Right to Dignity (Section 10): Mandating a clear definite naming convention based on gender that was opposed to be an infringement of personal identity and dignity[7]
- Does Section 20(1) of the Births and Death Registration Act unfairly discriminate against men based on gender and sex?
Arguments presented
4.1 Appellants Argument
The applicants argued that the law created a “Contrasted” system where woman’s identity is legally fluid upon marriage, but a mans in strict. This violates Section 9 of the Constitution.
On Patriarchal tradition, they asserted that the law was based on an outdated “Coverture” doctrine, where a woman’s legal identity was subsumed by her husbands.
In terms of dignity, by preventing a man from choosing his wife’s surname easily, the state was obstructing in the most personal aspects of identity and family formation[8]
4.2 Respondents Argument (Minister of Home Affairs)
In terms of the Respondents argument, dealing with administrative record-keeping, the state initially suggested that the current system was essential for the integrity of the population register and prevent identity fraud.
In terms of tradition, while not directly defending sexism, the state’s historical stance depended on the “long-standing practice “of lineage following the paternal line.
Notably, as the case progressed, the Department of Home Affairs founded that increasingly challenging to provide a rational, constitutional basis for the distinction, eventually leading to a lack of sturdy opposition to the declaration of invalidity.
Court’s Reasoning and Analysis
The Courts reason was embedded in the “substantive equality “framework of the South African Constitution.
The Harkson Test: The Court found out that Section 26(1) clearly differentiates between people based on sex and gender, both listed grounds in Section 9(3). [9]This meant that the discrimination was presumed unfair
The Gender Gap: The Court found that Section 26(1) clearly favored women in a way that reinforced stereotypes. It assumed women are the ones who “leave “their families to join the husbands, while men remain the “head “and “holder “of the name.
Violation of Section 9: Under the Harkson vs Lane test, the Court decided that the discrimination was based on a listed ground (gender\sex) and was therefore p assumed to be unfair
No Rational Connection: The Court found no rational link between gender of a person and the states interest in sustaining a population register. If a women can change her name without causing an “administrative chaos”, a man can to.
Dignity: The Court highlights that the right to choose that the right to choose one name is a dimension of the righty to establish one’s own identity
Section 9(1) of the Constitution forbids unfair variation; section 9(3) forbids a direct gender discrimination without being justified under section 36, the Limitation clause. Names have varieties of core identity, safeguarded by dignity and equality; patriarchal norms are unable to overrule constitutional values
Section 10 of the Constitution ensures that everyone has inherent dignity and the right to have their dignity to be regarded and defended
Section 26(1) of Act 51 of 1992; Traditionally expressed that a women may assume her husband’s surname but stayed quiet regarding men.
Judgment and ratio decidendi
The Court found that section 26(1)(a)- (c) distinguished unjustifiable by barring men from spousal surname altercations, bolstering biases that is harmful for both genders, men is withheld choice and women attached to dependant identity. This limits dignity and equality without Section 36 of the Constitution justification, as no valid objective outweighed harm. Regulation 18(2)(a) needed no different nullification.
Ration decidendi:
Any law that contrasts between spouses based on gender regarding the presumption of a surname violates the right to equality and dignity. There is no valid government purpose in sustaining a patriarchal system that demands whose identity is primary in a marriage. Discrimination based on gender regarding the administrative procedure for changing a surname upon marriage in unfair. The state may not administer patriarchal traditions through statutes that imposes a heavier administrative burden on one gender than the other.
Order issued:
- The words “or man “and husband “were productively read into the Act to make it gender-neutral
- The department of Home Affairs was ordered to amend its systems (including the National Population Registration) to permit men to change their surnames upon marriage immediately.
- The order was directed to the Constitutional Court for a final Confirmation.
Critical Analysis
7.1 Significance of the decision
This case is a “silent” radical moment. While it doesn’t grab news like criminal trials, it influences the daily lives of every South Arican couple. The Jordaan case is a significant step towards “de-gendering” South African law. While previous landmark cases (like Minister of Home Affairs vs Fourie) focus on the consequences of marriage. It disassembles the idea that the “male” name is the default or superior name in a domestic union
7.2 Implications and impact
Direct Impact: Men in South Africa may adopt their wives’ surnames now or create a double-barrelled name by presenting simply their marriage certificate at Home Affairs.[10]
Gender Roles: It inspires more fair view of marriages, where the union is a partnership of equals rather an acquisition of the wife by the husband
Social: It enables men to break from traditional norms without being penalized by the state, it also validates women whose surnames are chosen by their husbands, signalling that their lineage and identity are of equal value.
Administrative: It compels the Department of Home Affairs to modernize its digital systems, which were previously embedded to only “Surnames Changes: Female”
Critical evaluation
The judgement is faultless in its constitutional logic. However, the true test lies in the application. The department of Home Affairs is notorious for system delays; the critical challenge is confirming that the frontline “Home Affairs” officials are trained to process these changes without backtracking to old prejudice or claiming the “system doesn’t allow it”
Conclusion:
Section 26(1)(a) -(c) was confirmed to be invalid, suspended 24 months from High Court order for Parliamentary remedy. High Courts reading- in sustained for provisional gender- neutral permission; Regulation 18(2)(a) ruling untroubled. Applicants surname relief is declared, promoting equality in family law. In current standing, any spouse may now assume the surname of the other spouse, continue a prior surname, or produce a double- barrelled surname without lacking the required need of special clearance from the Director- General.
Bibliography
Caselaw
Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
Harkson vs Lane NO and Others 1998 (1) SA 300 (CC).
Statutes and Statutory instruments
The Constitution of the republic of South Africa, 1996 (Section 9, 10 and 36).
Births and Deaths Registration Act 51 of 1992
Websites and Blogs
Mayet and Associates, “Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs” Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs – Mayet & Associates accessed o8 February 2026.
[1] Births and Deaths Registration Act 51 of 1992, Section 26.
[2] Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
[3] Mayet and Associates, “Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs” Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs – Mayet & Associates accessed o8 February 2026
[4] Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
[5] Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
[6] Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
[7] Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19.
[8] Mayet and Associates, “Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs” Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs – Mayet & Associates accessed o8 February 2026.
[9] Harkson vs Lane NO and Others 1998 (1) SA 300 (CC).
[10] Mayet and Associates, “Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs” Constitutional Court says husbands can now legally adopt wives’ surname: Jordaan and Others v Minister of Home Affairs – Mayet & Associates accessed o8 February 2026.
