Authored By: Tswaranang Fikile Hope Moyo
University Of South Africa
Case Citation and Basic Information
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) (11 September 2025), (per Theron J(unanimous), Madlanga ADCJ, Dambuza AJ, Kollapen J, Majiedt J, Mhlantha J, Opperman AJ, Rogers J, and Tshiqi J)
Introduction
This is a significant Constitutional Court decision situated within South African administrative and constitutional law. It specifically concerns identity rights and the exercise of administrative discretion. The case centers on the Department of Home Affairs’ law of refusal for individuals, especially spouses, to adopt a surname of their choice. It is noteworthy for challenging bureaucratic practices that restrict personal autonomy and for affirming that such decisions must comply with constitutional rights, more especially dignity and equality.
Facts of the Case
The first applicant, Ms. Jana Jordaan, is married to the second applicant, Mr. Henry Van der Merwe.
They got married in Bloemfontein, 2021 and had agreed, prior to their marriage, that Mr. Van der Merwe would assume Ms. Jordaan’s surname for her to maintain her familial ties to her deceased biological parents. After registering their marriage, the couple were informed by the Department of Home Affairs that it would not be possible for Mr. Van der Merwe to assume Ms. Jordaan’s surname. The couple also had a child and wished for the child to bear the surname “Jordaan”.
The third applicant, Ms. Jess Donnelly-Bornman, is also married to the fourth applicant, Mr. Andreas Nicolaas Bornman. The third applicant also wished to maintain her familial ties with her biological parents as an only child. They opted for their surname to be reflected as DonnellyBornman and were advised by the Department that only a female spouse may amend her surname and not a male spouse.
The applicants took the matter further and instituted proceedings in the High Court and argued that section 26(1)(a)-(c) of the Birth and Registration Act and regulation 18 (2)(a) were unconstitutional and discriminatory on the grounds of gender. They also sought ancillary relief regarding the assumption of their preferred surnames.
The first and second respondents, which are The Minister of Home Affairs and The Minister of Justice and Constitutional Development, did not oppose the matter in court. The Free State Society of Advocates were admitted as amicus curiae (friend of the court) and supported the applicant’s argument that the provision of the Act were patriarchal and in violation of the right to equality in section 9 of the Constitution and unfairly discriminated on the grounds of gender.
Legal Issues
Issue 1: Whether section 26(1)(a)-(c) of the Births and Deaths Registration Act was constitutional according to section 9 of the Constitution?
Issue 2: Whether Regulation 18 (2)(a) of the Regulations was constitutional?
Issue 3: What is the appropriate remedy for the violation of equality by the Act and Regulations?
Arguments Presented
Petitioner’s Argument
The applicants argued and declared section 26(1)(a)-(c) of the Acts unconstitutional. It further provides in section 26(2) that “At the request of any person, in the prescribed manner, the DirectorGeneral 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.”
They also contended that regulation (18)(2) unconstitutional which states “Assumption of another surname—
(2) The reasons referred to in section 26(2) of the Act must relate to—
a change in the marital status of a woman;
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
protection of a person in terms of the Witness Protection Act, 1998 (Act No. 112 of 1998).”
The applicants maintained that the provisions violate the Constitution by arbitrarily differentiating between men and women’s ability to change their surnames upon marriage or of their own accord, because of their gender. Relying on the case of Hugo[1], they argued that The Act and Regulations are contrary to section 9-the right to equality (2) and 9(3) and section 10-the right to dignity, of the constitution because they do not encourage equality and dignity but are instead prohibited. They further contended in relation to section 7(3) with section 36 of the Constitution that the limits on these rights are not justifiable.
The applicants relied on a statement in Wile2, where Bozalek J held to the extent that regulation 18 of the Regulations on the Registration of Births and Deaths seeks to create a list of reasons for one to change their surname, it was beyond the powers of the Minister. Lastly, the applicants submitted that section 26(2) and regulation 18 must meet the equality test established in Harksen[2] to pass constitutional muster.
Respondent’s Argument
The first and second respondents, which are The Minister of Home Affairs and The Minister of Justice and Constitutional Development, did not oppose the matter in court. The respondents filed notices to abide by the Court. They received directions from the Chief Justice to file written submissions, addressing the relief sought by the applicants. In their submissions, they did not oppose the confirmation of the declaration of unconstitutionality. They agreed that the impugned provisions are rooted in colonialism and patriarchy. They admitted that they should be amended to mirror the values of the constitution and agreed with the applicant’s proposal of having the constitutional invalidity suspended and for Parliament to be given a two-year period to remedy any such defect.
The respondents had no objection to a man assuming another surname after marriage, given that the new surname is linked to an already existing surname and be double barreled.
Court’s Reasoning and Analysis
The court evaluated the historical context of gender discrimination, that it is a world wide issue and deeply rooted in patriarchy. Sithole Tshiqi held that it is one of the central drivers of oppression of women through gender stereotypes and abusive cultural practices. Rahube Goliath AJ held that it was important to recognize how patriarchy has excluded women from even gender-neutral spaces. Women are now as perceived as less, and men are prioritized in prevalent spheres of life. He said that the practice of women assuming the husband’s surname is rooted in colonialism, religion, and patriarchal norms. This very practice is the one which established these norms where women were seen as inferior to their husbands.
The practice of a woman taking her husband’s surname existed in Roman Dutch law and way introduced to South Africa by European colonizers. It also came into existence through legislation that was introduced by the countries that colonized Africa.
Moreover, he stated that the marital power regime has been eliminated and the women’s rights in South Africa has allowed for the significant advancement of gender equality and the self determination of women. However, there are still many laws and practices that continues to perpetuate discriminatory stereotypes towards the role and autonomy of women.
The court addressed the inequality and stated section 9(1) of the Constitution which guarantees that everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9 (2) provides for the achievement of full and equal enjoyment of all rights and freedoms and authorizes legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.
The Court used the two-stage step, established in Harksen[3] to determine unfair discrimination. The court first had to determine whether the provisions differentiated people and if so, is this discrimination serving a legitimate government purpose. If the provisions failed the test, it violated section 9(1) the right to equality before the law, but if it passes, the court still had to enquire whether the differentiation amounts to discrimination and whether the discrimination is unfair.
The court held that the fact that men cannot assume their wives’ surnames fit the definition of differentiation. It held that the impugned provisions differentiate between people based on gender, and it served no legitimate government purpose and therefore unfair because it takes away the right of men to choose their own identity and determining their family structure. It is also demeaning to women because it paints the idea that the man’s surname is superior and deserves to serve as the family surname.
Judgement and Ratio Decidendi
The Decision
The court ruled in favor of the applicants. They declared that the impugned provisions were unconstitutional and differentiates people on the grounds of gender and violated section 9 and 10 of the Constitution. It further issued a declaration of invalidity, accompanied by a just and equitable remedy. The remedy was suspension of the the declaration of invalidity for a period of 24 months to allow Parliament to correct the defect. In addition, the Court directed the respondents to take interim measures to protect the affected individuals during the suspension period.
The first and second applicants sought an order from the first respondent to amend the surname of their child to “Jordaan” and this was granted by the High Court, and they also were entitled to change their familial surname to the one they desire. The first respondent was ordered to pay the applicants’ costs in the Court, including the counsel.
Ratio Decidendi: The Court held that the impugned provisions were unconstitutional and violated against the rights to equality and dignity of the applicants. It concluded that this was unfair, sexist, and patriarchal amongst other things.
Critical Analysis
This case entirely changes princi0les and norms in South African law and society. Prior to this, there were limitations and uncertainty regarding the extent to assumptions to surnames. The Court resolved this ambiguity, by adopting a purposive and constitutionally compliant interpretation, firmly grounding its reasoning to the purpose of the constitution and importantly section 9 and 10. It reinforced the principle that legislation must be in the best interests of everyone, and it must also be practically so.
It changes things for men and women, allowing men to make their own choices pertaining their identity and it gives women the right to determine their familial structure. Ultimately, promoting equality and likely to influence future jurisprudence concerning equality, patriarchy, identity, and administrative justice in family law.
The Court’s reasoning is commendable for its strong commitment to constitutional supremacy and its emphasis on dignity, equality, and the best interest of heterosexual marriages. The judgement sufficiently addressed and implemented practical measures to provide relief and change in legislation.
Conclusion
The key take away from this case is that individuals have the right to choose their preferred surnames within the framework of the the law, and administrative authorities may not impose inflexible or discriminatory interpretations that undermine equality and dignity. This reinforced the principle that personal identity is closely linked to constitutional protection.
The lasting impact of the judgement lies in its affirmation that administrative discretion must be exercised lawfully, reasonably, and consistent with constitutional values. It will be remembered for challenging traditional and gendered assumptions around surname practices.
Reference(S):
[1] President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BVLR 708 (CC) 2 Wile v MEC, Department of Home Affairs, Gauteng [2016] 3 All SA 945 (WCC); 2017 (1) SA 125 (WCC) at paras 46-9
[2] Harksen v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) at para 52
[3] Harksen v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) at para 52
