By Johnathan Paoli
The Constitutional Court has struck down provisions of the Births and Deaths Registration Act that prevented men from assuming the surnames of their wives, declaring them unconstitutional for unfairly discriminating on the basis of gender.
In a unanimous judgment delivered on Thursday, Justice Leona Theron ruled that Section 26(1)(a)–(c) of the Act entrenched patriarchal norms and violated the constitutional right to equality by denying men the same freedoms afforded to women.
Justice Theron traced the history of surname practices, noting that the expectation for women to take their husbands’ surnames was a “colonial import” rooted in patriarchal norms.
“This court considers that this practice is largely a colonial import, rooted in patriarchal norms where women were seen as legally inferior to their husbands and expected to assume their identity,” she said.
The court confirmed an earlier order of invalidity by the Free State High Court and gave Parliament 24 months to amend the legislation.
The case was brought by two couples, Jana Jordaan and Henry van der Merwe, and Jess Donnelly-Bornman and Andreas Nicolas Bornman after the Home Affairs department denied the men’s applications to take their wives’ surnames.
Van der Merwe sought to adopt Jordaan’s surname, while Bornman wanted to hyphenate his surname to include his wife’s.
Although the Free State High Court ruled in their favour, the declaration of invalidity required confirmation by the Constitutional Court before taking effect.
The apex court confirmed that the provisions unfairly discriminated against men and perpetuated colonial-era practices that subordinated women.
The judgment highlighted how the law’s asymmetry not only deprived men of choice but also reinforced a cultural and legal framework where women’s identities were subsumed under their husbands.
“The symbolic consequence is that women’s identities are subsumed into their husbands’ families after marriage. This has the inevitable upshot of entrenching the notion that the husband is the head of the household,” Theron said.
The court applied the two-stage equality test established in Harksen v Lane, concluding that the differentiation amounted to unfair discrimination.
While the government’s stated purpose in regulating surnames was to ensure they remained connected to family identity, the court found that this objective was not advanced by excluding men from assuming their wives’ surnames.
Justice Theron emphasised that the discrimination had complex consequences for both genders.
For men, it denied the right to structure family identity around their wives’ surnames.
For women, the impact was “far more insidious,” as it reinforced gender roles that prescribe identity in relation to men.
“This practice perpetuates the historical philosophy that women are not equal to men and become akin to minors upon marriage,” she held.
The court also drew on international law, citing decisions by the United Nations Human Rights Committee and the European Commission of Human Rights that condemned gender-based restrictions on surname changes.
While suspending the order of invalidity for 24 months to allow Parliament to amend the Act, the court introduced an interim “reading-in” remedy.
To avoid further gendered language, it adopted terminology from the Civil Union Act, referring to “spouses” and “partners” rather than “husbands” and “wives.”
This interim measure ensures that all spouses, regardless of gender, can assume their partner’s surname, resume a prior surname, or combine surnames while Parliament works on permanent amendments.
The court declined, however, to order an automatic change to the surname of Jordaan and Van der Merwe’s child, ruling that such matters must follow the separate provisions of Section 25(2) of the Act.
The Home Affairs department, though it did not oppose the confirmation of invalidity, was ordered to pay the applicants’ legal costs.
The court held that the couples would not have been forced to litigate had the law not been unconstitutional.
Parliament now faces the task of revising the Act to ensure it fully complies with constitutional standards.
Should it fail to do so within two years, the Constitutional Court’s interim provisions will remain in place until remedial legislation is enacted.
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