Introduction

The Constitutional Court has once again reminded South Africans that equality is not negotiable. In a recent judgment, the Court struck down parts of the Births and Deaths Registration Act 51 of 1992 and its regulations that only allowed wives to take their husbands’ surnames upon marriage, while denying husbands the same choice. The ruling in Jordaan and Others v Minister of Home Affairs and Another is more than just an administrative correction; it represents a deliberate break from laws shaped by patriarchy, and a recognition that personal identity and dignity must never be defined by gender.

When Husbands Want Their Wives’ Surnames

This case arose from the personal journeys of two couples who sought to build their family identities in ways that defied convention.

Initially, Jana Jordaan and Henry van der Merwe agreed that Henry would take Jana’s surname after their 2021 marriage. The Department of Home Affairs, however, refused, stating that men were not allowed to adopt their wives’ surnames. Their difficulties extended to their child, who could not legally be registered with the surname “Jordaan.”

The second couple, Jess Donnelly-Bornman and Andreas Bornman settled on the surname “Donnelly-Bornman.” Yet, the Department once again refused to recognise the change, insisting that only wives could alter their surnames.

Frustrated, both couples turned to the courts, arguing that the law discriminated unfairly on the basis of gender. At the heart of the case was a simple but powerful argument: the law infringed fundamental constitutional rights.

1. Equality (Section 9): The Act treated spouses differently purely on the basis of gender, an arbitrary distinction that undermined equal protection under the law.

2. Dignity (Section 10): By restricting surname choices, the law stripped individuals of their ability to make deeply personal decisions about family and identity.

Applying the Harksen v Lane framework, the Court examined whether this gender-based differentiation served a legitimate purpose and whether it amounted to unfair discrimination. The Applicants argued, and the Court agreed, that the restrictions were rooted in outdated patriarchal assumptions and lacked any rational justification.

The Court stressed that naming is not a trivial matter. It is tied to identity, belonging, and dignity. Denying someone the ability to choose a surname on equal terms undermines their autonomy and sense of self. Notably, the Court found that this infringement could not be justified under section 36 of the Constitution, which allows for limitations on rights only where they are reasonable and justifiable.

The Court declared the provisions unconstitutional but opted for a carefully measured remedy: Parliament was given 24 months to amend the law. In the meantime, the Court inserted gender-neutral language from the Civil Union Act, allowing either spouse to adopt the other’s surname. This ensured that affected couples could exercise their rights immediately without waiting for legislative reform. If Parliament fails to act within the two years, the interim remedy will remain in place indefinitely.

Conclusion

The Constitutional Court’s decision in Jordaan is a significant stride toward gender equality in South Africa’s legal system. By affirming that both men and women have an equal right to decide how their families are named, the Court has dismantled one more vestige of patriarchal law.

This ruling is not just about names; it is about choice, dignity, and equality. It reinforces the principle that in a constitutional democracy, personal identity cannot be dictated by outdated traditions, but must be shaped by freedom and respect for human dignity.

Robyn Shepherd | SchoemanLaw Inc

Attorney