The Factual Matrix: When Husbands Want to Take Their Wives’ Surnames
The facts giving rise to this landmark constitutional challenge present a stark illustration of how outdated legislation can collide with modern family choices and constitutional values. The case involved two couples who found themselves constrained by the gendered provisions of section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 and regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, GN 128 GG 37373, 26 February 2014.
The first and second applicants, Jana Jordaan and Henry van der Merwe, married in Bloemfontein in 2021 having agreed prior to their union that Henry would assume Jana’s surname. This decision was motivated by Jana’s desire to preserve her familial ties to her deceased biological parents. However, their plans were thwarted when the Department of Home Affairs advised them that it was not legally permissible for a male spouse to assume his wife’s surname. The couple’s frustration was compounded by their wish for their child to bear the surname “Jordaan” – a desire that remained unfulfilled due to the legislative constraints.
Similarly, the third and fourth applicants, Jess Donnelly-Bornman and Andreas Nicolaas Bornman, faced comparable difficulties. As an only child, Jess wished to retain her surname to preserve her familial connections with her biological parents. The couple opted for their surname to be reflected as “Donnelly-Bornman,” but were informed by the Department that the law permitted only female spouses to amend their surnames upon marriage, not their male counterparts.
These practical impediments led both couples to challenge the constitutional validity of the relevant provisions, arguing that the legislation’s gender-based distinctions violated their equality rights. The respondents – the Minister of Home Affairs and the Minister of Justice and Constitutional Development – notably did not oppose the matter in the High Court, with the Free State Society of Advocates serving as amicus curiae to assist the court.
The factual backdrop thus reveals how legislative provisions rooted in historical patriarchal assumptions can create real-world barriers for couples seeking to structure their family identity in ways that reflect their personal values and circumstances, rather than conforming to traditional gender roles embedded in law.
Constitutional Challenge to Section 26(1)(a)-(c) of the Births and Deaths Registration Act
The applicants mounted their constitutional challenge on the premise that the impugned legislative provisions violated fundamental constitutional rights through their discriminatory treatment of spouses based solely on gender. Their challenge targeted both the primary legislation and its supporting regulatory framework, arguing that these provisions created an unconstitutional differentiation that could not withstand constitutional scrutiny.
At the heart of the challenge lay section 9 of the Constitution of the Republic of South Africa, 1996, which enshrines the right to equality. The applicants contended that the legislation violated both the formal equality guarantee in section 9(1) and the substantive equality and anti-discrimination provisions in sections 9(2) and 9(3). They further argued that the provisions infringed section 10 of the Constitution, which protects human dignity, by reinforcing patriarchal assumptions about gender roles within marriage.
The legal framework established in Harksen v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) provided the analytical structure for the Court’s examination. The Harksen test requires a two-stage inquiry: first, whether the provision differentiates between people or categories of people and whether such differentiation serves a legitimate government purpose; second, if the provision passes the first stage, whether the differentiation amounts to unfair discrimination.
The applicants relied heavily on President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) to argue that the provisions contravened the constitutional goal of promoting equality and prohibiting unfair discrimination. They also drew support from Wile v MEC, Department of Home Affairs, Gauteng [2016] 3 All SA 945 (WCC); 2017 (1) SA 125 (WCC), where the court held that regulation 18’s attempt to create a closed list of reasons for surname changes was ultra vires.
The challenge was strengthened by the applicants’ argument that any limitation of constitutional rights must satisfy the justification test under section 36 of the Constitution. They contended that the gender-based restrictions could not meet the demanding standard of being reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Notably, the respondents offered no substantive defence of the impugned provisions, instead conceding that the legislation was rooted in colonialism and patriarchal norms that required constitutional alignment. This concession significantly streamlined the Court’s analysis but did not absolve it of the duty to conduct a thorough constitutional examination.
The Court’s Equality Analysis: Unpacking Gender-Based Discrimination in Marital Naming Laws
The Constitutional Court’s equality analysis commenced with a comprehensive examination of the historical underpinnings of gendered surname practices, tracing their origins to colonial imposition and patriarchal legal systems. Theron J undertook an extensive historical survey, demonstrating how the tradition of women assuming their husbands’ surnames was a colonial import that reinforced hierarchical gender relationships rooted in Roman-Dutch law concepts such as marriage cum manu, where wives became legally subordinate to their husbands.
The Court’s analysis revealed how these practices were historically embedded in legal frameworks that treated married women as legally inferior, drawing parallels to the English doctrine of coverture. The judgment extensively referenced the marital power regime that had previously existed in South African law, noting how constitutional democracy had progressively dismantled these patriarchal structures while the impugned provisions remained as vestiges of discriminatory legal thinking.
Applying the Harksen test, the Court found that the legislation clearly differentiated between persons based on gender, with men unable to assume their wives’ surnames while women enjoyed this option freely. The Court determined that this differentiation served no legitimate government purpose, noting that the stated objective of preventing the creation of surnames without family connection was not advanced by the gender-based restriction, since both spouses would be assuming existing family surnames.
The Court’s substantive equality analysis drew heavily from National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) and Rahube v Rahube [2018] ZACC 42; 2019 (1) BCLR 125 (CC); 2019 (2) SA 54 (CC) to emphasise that constitutional equality demands more than formal equal treatment. The judgment recognised that the discrimination affected both men and women differently but equally harmfully – depriving men of personal choice while reinforcing women’s subordinate status through the presumption that only the husband’s surname deserved family recognition.
The dignity analysis proved particularly compelling, with the Court finding that personal naming choices constitute matters of central significance to individual identity and self-fulfillment. Drawing from Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC), the Court emphasised dignity’s foundational role in constitutional interpretation.
The Court’s section 36 of the Constitution limitation analysis was brief but decisive, finding that the discrimination could not meet the justification standard required in an open and democratic society. The absence of any compelling state interest in maintaining gender-based surname restrictions, combined with the fundamental importance of equality and dignity rights, rendered the limitation unjustifiable. The Court noted that even without respondent opposition, it remained obligated to conduct thorough constitutional scrutiny, ultimately concluding that the provisions violated both sections 9(1) and 9(3) while failing any reasonable limitation test.
Remedy and Relief: Suspended Declaration of Invalidity with Interim Reading-In
Having found the impugned provisions unconstitutional, the Court turned to the complex question of appropriate remedial relief, drawing on established jurisprudence governing declarations of invalidity and interim measures. The Court’s remedial approach reflected careful consideration of separation of powers principles while ensuring immediate protection for affected parties.
The Court granted a suspended declaration of invalidity for 24 months, allowing Parliament time to remedy the constitutional defects through legislative amendment or new enactment. This approach aligned with established precedent from Executive Council, Western Cape Legislature v President of the Republic of South Africa [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC) regarding the need to preserve regulatory frameworks while enabling legislative correction. The Court recognised that striking down the provisions entirely would eliminate the existing mechanism for surname changes upon marriage, creating a regulatory vacuum pending parliamentary intervention.
The interim reading-in remedy proved particularly innovative, with the Court employing gender-neutral language borrowed from the Civil Union Act 17 of 2006 to cure the immediate constitutional defect. This approach enabled both spouses to assume each other’s surnames during the suspension period, ensuring that couples like the applicants would not remain prejudiced while awaiting legislative reform. The Court noted that this remedy had been successfully employed in previous gender and sexual equality cases, including Du Toit v Minister of Welfare and Population Development [2002] ZACC 20; 2002 (10) BCLR 1006 (CC); 2003 (2) SA 198 (CC) and Satchwell v President of Republic of South Africa [2002] ZACC 18; 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC).
The Court drew guidance from National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (1) BCLR 39 (CC); 2000 (2) SA 1 (CC) in determining that reading-in was appropriate where the constitutional defect could be remedied through precise textual insertion without undermining the legislative scheme’s fundamental purpose.
However, the Court declined to grant the specific relief sought regarding the applicants’ child’s surname change, distinguishing between remedies flowing directly from the constitutional violation and broader consequential relief. The Court noted that the applicants remained entitled to apply for their child’s surname change under section 25(2) of the Births and Deaths Registration Act, rendering judicial intervention in this specific aspect unnecessary and inappropriate.
The Court’s treatment of regulatory invalidity proved instructive, confirming that regulation 18(2)(a) of the Regulations required no separate confirmation under section 167(5) of the Constitution. Following precedent from the Satchwell case and Scalabrini Centre of Cape Town v Minister of Home Affairs [2023] ZACC 45; 2024 (3) SA 330 (CC); 2024 (4) BCLR 592 (CC), the Court noted that regulatory invalidity flows automatically from statutory invalidity without requiring Constitutional Court confirmation.
The remedial order included a failsafe provision ensuring that should Parliament fail to remedy the defects within 24 months, the interim reading-in provisions would continue operating indefinitely until proper legislative correction occurred. This approach balanced judicial restraint with effective constitutional protection, ensuring that the rights violations identified would not persist indefinitely pending political action.
Implications for Legal Practice: What This Judgment Means for Family Law and Constitutional Litigation
The Jordaan judgment establishes significant precedent for constitutional equality litigation while offering practical guidance for legal practitioners across multiple areas of law. The decision’s reliance on international law sources provides a template for future constitutional challenges, demonstrating how instruments like the International Covenant on Civil and Political Rights can strengthen domestic equality arguments. The Court’s detailed analysis of the Müller and Engelhard v. Namibia, Comm. 919/2000, U.N. Doc. A/57/40 decision and the Burghartz v. Switzerland, no 16213/90, European Commission of Human Rights 1992 case illustrates how comparative jurisprudence can illuminate constitutional interpretation, particularly in equality contexts.
For family law practitioners, the judgment signals a judicial willingness to scrutinise legislation that perpetuates gender-based assumptions about family structures. The Court’s historical analysis of patriarchal legal traditions suggests that other family law provisions rooted in similar assumptions may be vulnerable to constitutional challenge. The decision’s emphasis on personal autonomy in family identity choices indicates that courts will increasingly protect individual agency against legislative presumptions about appropriate family arrangements.
The judgment’s methodical application of the Harksen test provides constitutional litigators with a roadmap for challenging discriminatory legislation, particularly where government purposes prove illusory or where differentiation serves no legitimate regulatory objective. The Court’s willingness to undertake thorough constitutional analysis despite respondent concessions reinforces that courts cannot abdicate their constitutional scrutiny role simply because parties agree on outcomes.
The decision’s international law component offers litigation strategists valuable ammunition for future challenges. The Court’s engagement with Human Rights Committee decisions and European Court jurisprudence demonstrates how international instruments can supplement domestic constitutional analysis, particularly where South African jurisprudence remains underdeveloped on specific equality issues. This approach may prove especially valuable in challenging other legislative provisions that differentiate based on protected characteristics.
Legislative drafters should note the judgment’s critique of gender-specific language in contemporary statutes, particularly the Court’s favourable comparison with the Civil Union Act’s gender-neutral terminology. The decision suggests that modern legislative drafting should employ inclusive language that avoids reinforcing traditional gender roles or excluding diverse family configurations. The Court’s analysis indicates that seemingly neutral regulatory purposes cannot justify discriminatory means, requiring more careful consideration of how legislative objectives are achieved.
The judgment’s suspended declaration approach offers procedural insights for constitutional litigation strategy, demonstrating how courts can balance separation of powers concerns with immediate constitutional protection. The innovative use of reading-in remedies during suspension periods provides a model for ensuring that successful constitutional challenges do not leave applicants worse off pending legislative reform. However, the Court’s refusal to grant broader consequential relief regarding the applicants’ child’s surname illustrates judicial restraint in extending remedial orders beyond the specific constitutional violation identified.
For candidate attorneys and law students, the decision exemplifies comprehensive constitutional analysis that integrates historical context, comparative law, and practical consequences. The judgment’s structure demonstrates how complex constitutional challenges require systematic examination of legislative purpose, discriminatory effect, and available remedies. The Court’s detailed engagement with the respondents’ concessions while maintaining independent constitutional scrutiny illustrates professional obligations that transcend adversarial positioning.
The decision’s broader implications extend beyond family law to any legislation that differentiates based on protected grounds. The Court’s analysis suggests heightened scrutiny for provisions that rely on traditional role assumptions, particularly where such assumptions lack contemporary justification. This approach may influence future challenges to legislation affecting women’s rights, LGBTI+ rights, and other equality-protected categories where historical discrimination persists through seemingly neutral regulatory frameworks.
Questions and Answers
Which specific constitutional provisions did the Court find were violated by the impugned legislation?
The Constitutional Court found that section 26(1)(a)-(c) of the Births and Deaths Registration Act violated section 9(1) of the Constitution by differentiating irrationally on the ground of gender, and section 9(3) by unfairly discriminating on the ground of gender. The Court also found violations of section 10, which protects human dignity, as the provisions impaired individuals’ ability to make personal choices about their identity and family structure.
What legal test did the Court apply to determine whether unfair discrimination had occurred?
The Court applied the two-stage test established in the Harksen case. The first stage requires determining whether the provision differentiates between people or categories of people, and if so, whether this differentiation serves a legitimate government purpose. If the provision fails this test, it violates section 9(1). The second stage examines whether the differentiation amounts to discrimination and whether such discrimination is unfair.
Which legislation and regulations were specifically challenged in this case?
The applicants challenged section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 and regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, published in Government Notice 128, Government Gazette 37373 of 26 February 2014. These provisions collectively created a framework that permitted only women to assume their spouses’ surnames upon marriage.
Why did the Court find that the gender-based differentiation served no legitimate government purpose?
The Court determined that the stated legitimate purpose – preventing the creation of surnames with no family connection – was not advanced by the gender-based restriction. Since both spouses would only be assuming existing family surnames (that of their spouse), the differentiation served no rational purpose in achieving the regulatory objective. The restriction was therefore found to be an arbitrary “naked preference” prohibited under constitutional equality principles.
What type of remedial order did the Court grant and why was this approach chosen?
The Court granted a suspended declaration of invalidity for 24 months, allowing Parliament time to remedy the constitutional defects through legislative amendment. This approach was chosen to honour separation of powers principles while preserving the existing regulatory framework that permits surname changes upon marriage. The Court recognised that immediately striking down the provisions would create a legislative vacuum pending parliamentary intervention.
What interim relief did the Court provide during the suspension period?
The Court implemented an interim reading-in remedy using gender-neutral language borrowed from the Civil Union Act. This allowed both spouses to assume each other’s surnames during the suspension period, ensuring that affected couples would not remain prejudiced while awaiting legislative reform. The interim provisions specifically state that section 26(1) shall not apply when a person assumes their spouse’s surname regardless of gender.
How did international law influence the Court’s reasoning?
The Court extensively analysed international instruments, particularly the International Covenant on Civil and Political Rights, noting that Article 3 protects equal enjoyment of rights by men and women, while General Comment No 28 specifically addresses spouses’ equal opportunity to choose family names. The Court also examined the Müller decision from the UN Human Rights Committee and the Burghartz case from the European Commission of Human Rights as persuasive authority supporting gender-neutral surname policies.
What historical analysis did the Court undertake regarding gendered surname practices?
The Court conducted an extensive historical examination tracing gendered surname practices to colonial imposition and Roman-Dutch law concepts such as marriage cum manu. Theron J demonstrated how these practices reinforced patriarchal norms where women were legally subordinate to their husbands, contrasting this with traditional African cultures where women often retained their birth names and children took their mother’s clan names.
Why did the Court decline to confirm the declaration of invalidity regarding the regulations?
Following precedent from the Satchwell and Scalabrini cases, the Court held that Constitutional Court confirmation is not required for regulatory invalidity under section 167(5) of the Constitution. Regulations are subordinate delegated instruments, not Acts of Parliament, and their invalidity flows automatically from the invalidity of enabling statutory provisions without requiring separate confirmation.
What was the Court’s analysis under section 36 of the Constitution regarding limitation of rights?
The Court conducted a brief but decisive section 36 analysis, finding that the discrimination could not meet the justification standard required in an open and democratic society based on human dignity, equality and freedom. The Court noted the absence of any compelling state interest in maintaining gender-based surname restrictions, combined with the fundamental importance of equality and dignity rights, rendered any limitation unjustifiable.
How did the Court analyse the dignity implications of the impugned provisions?
Drawing from the Dawood case, the Court emphasised that human dignity informs constitutional interpretation at multiple levels. The judgment found that personal naming choices constitute matters of central significance for individual identity and self-fulfilment. Prohibiting such choices impairs individuals’ ability to achieve personal fulfilment in aspects of life that are centrally significant to their human dignity.
What role did the Civil Union Act play in the Court’s remedial approach?
The Civil Union Act provided the template for gender-neutral language used in the interim reading-in remedy. The Court noted that this Act uses inclusive terminology such as “persons,” “partners,” and “spouses” rather than gendered language, avoiding discrimination based on partners’ gender. This approach not only remedied the immediate constitutional defect but aligned with broader constitutional values of inclusivity.
Why did the Court refuse to grant the specific relief regarding the applicants’ child’s surname?
The Court distinguished between remedies flowing directly from the constitutional violation and broader consequential relief. The child’s surname was determined under different statutory provisions (sections 9(1) and 9(2) of the Act), and the Court found that the applicants had alternative remedies available under section 25(2) for changing their child’s surname. The Court therefore declined to intervene where adequate alternative remedies existed.
What costs order did the Court make and what was the reasoning?
The Court ordered the first respondent to pay the applicants’ costs, including costs of two counsel where employed. The Court distinguished this case from the Biowatch principle, noting that costs were appropriate because the constitutionally offensive provisions necessitated litigation to vindicate constitutional rights. The Court limited its costs order to the confirmation proceedings, as there had been no appeal against the High Court’s costs order.
How does this judgment impact future constitutional equality litigation?
The Jordaan judgment provides a comprehensive template for challenging discriminatory legislation, demonstrating systematic application of the Harksen test combined with historical analysis and international law. The decision signals judicial willingness to scrutinise legislation perpetuating gender-based assumptions and suggests heightened scrutiny for provisions relying on traditional role assumptions without contemporary justification. The judgment’s integration of comparative jurisprudence offers valuable precedent for future equality challenges across multiple protected grounds.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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