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BUSINESS NEWS - On 11 September 2025 the Constitutional Court, in the matter of  Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19, considered the constitutionality of section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992, which governs the assumption of surnames after marriage. The applicants challenged the provisions for discriminating on the basis of gender. 

Specifically, the Act allowed women to assume their husband’s surname after marriage but did not provide the same right to men or allow men to resume or add previous surnames. 

The applicants argued that this perpetuates patriarchal norms and violates the constitutional rights to equality and dignity.

High Court Ruling
The High Court declared section 26(1)(a)-(c) unconstitutional for unfairly discriminating on the basis of gender. It also found regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths unconstitutional for failing to provide for changes in marital status for men. 

The High Court suspended the declaration of invalidity for 24 months to allow Parliament to amend the law and granted interim relief allowing both men and women to assume or resume surnames under equal terms.

Constitutional Court Decision
The Constitutional Court confirmed the High Court’s ruling. Justice Theron, writing for a unanimous bench, found that the provisions violated the right to equality by differentiating irrationally on the basis of gender and perpetuating patriarchal norms. 

The Court held that the provisions unfairly discriminated against men by denying them the right to assume their spouse’s surname and against women by reinforcing the notion that only the husband’s surname could serve as the family name.

Key Findings

1. Unfair Discrimination: The Act’s provisions were rooted in colonial and patriarchal traditions, which subordinated women and reinforced gender inequality. The inability of men to assume their wives’ surnames and the default assumption that women take their husband’s surname violated the right to equality.
2. Violation of Dignity: The provisions impaired individuals’ autonomy and dignity by restricting their ability to make personal choices about their identity and family structure.
3. No Justifiable Limitation: The Court found no legitimate government purpose for the differentiation. The regulation of surnames could be achieved without gender-based discrimination.

The Court accordingly suspended the declaration of invalidity for 24 months to allow Parliament to amend the law. 

In the interim, it ordered that both men and women be allowed to assume, resume, or add surnames under equal terms. If Parliament fails to act within 24 months, the interim measures will remain in effect.

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