Case  CCT 296/24
[2025] ZACC 19

Hearing Date: 04 March 2025

Judgement Date: 11 September 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 11 September 2025 at 09h00 the Constitutional Court handed down a unanimous judgment authored by Justice Theron in an application for confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Free State Division, Bloemfontein.

This application concerns the constitutionality of section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992 (the Act). This section regulates the amendment of the forenames and surnames of South African citizens, and is linked to regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014 (Regulations).

The first applicant is Ms Jana Jordaan, who is married to the second applicant, Mr Henry van der Merwe. The third applicant is Ms Jess Donnelly-Bornman, who is married to the fourth applicant, Mr Andreas Nicolaas Bornman. The first and second respondents are the Minister of Home Affairs and the Minister of Justice and Constitutional Development, respectively.

In the case of the first and second applicants, prior to their marriage they had agreed that the second applicant would assume the surname of the first applicant. Upon registration of the marriage, the first and second applicants were advised by the Department of Home Affairs that it was not possible for the second applicant to assume the first applicant’s surname. The first and second applicants also have a child who they would like to bear the surname “Jordaan”. In the case of the third and fourth applicants, the third applicant wished to retain her surname to preserve familial ties with her biological parents as an only child and the couple intended to have their surnames reflected as “Donnelly-Bornman”. They were advised by the Department that only a female spouse may amend her surname, not a male spouse.

The applicants instituted proceedings in the High Court in which they sought, among others, an order declaring the impugned provisions of the Act and Regulations unconstitutional to the extent that they discriminate on the grounds of gender. They also sought ancillary relief regarding the assumption of their preferred surnames. The respondents did not oppose the matter in the High Court. At the request of the High Court, the Free State Society of Advocates was admitted as amicus curiae (friend of the court). The amicus curiae supported the argument advanced by the applicants.

The High Court declared section 26(1)(a)–(c) to be unconstitutional to the extent that it discriminates on the ground of gender. The High Court further held that Regulation 18(2)(a) is unconstitutional to the extent that it discriminates against male persons by failing to provide for a man to apply to change his name following a change in his marital status. The High Court ordered a suspension of the declaration of invalidity for a period of 24 months. In the interim, the High Court ordered a reading-in of terms reflecting that both men and women may apply to change their surname in terms of subsection 26(1). The High Court granted further relief and amended the surnames of the applicants to their desired surnames.

The applicants sought to confirm the declaration of invalidity in this Court.

The Court considered the following issues: (i) the constitutionality of section 26(1)(a)-(c) of the Act; (ii) the constitutionality of regulation 18(2)(a) of the Regulations and (iii) the appropriate remedy.

On the constitutionality of section 26(1)(a)-(c) of the Act, the Court began its analysis by examining the historical context of women assuming their husbands’ surnames after marriage. The Court then considered the right to equality and the two-stage test laid out in Harksen v Lane. The Court found that the inability of men to assume their wives’ surnames constitutes differentiation.

Next, the Court considered whether the differentiation served a legitimate government purpose. The legitimate government purpose in this case, namely seeking to regulate surnames to ensure that new surnames are not created which bear no connection to the family surname, is not served by the differentiation. This is because the restriction imposed on assuming another surname is not removed if the differentiation is remedied; persons wishing to change their surnames may only assume an existing surname, that of their spouse.

On whether the differentiation constitutes unfair discrimination, this Court found that the discrimination negatively affected both men and women. In the case of men, they are deprived of the ability to take their wives’ surnames if they so wish. In the case of women, the effects of this scheme are far more insidious. It is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname. It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default.

The Court found that this this limitation of equality cannot be sustained under section 36 of the Constitution.

On whether the regulation 18(2)(a) is unconstitutional, this Court found that it is not necessary to confirm the order striking down the regulation and the High Court’s order accordingly stands.

Finally, in respect of remedy, this Court considered the appropriateness of a suspension order to allow Parliament to make the provisions constitutionally compliant and to preserve, in the meanwhile, the regulatory framework that permits (albeit deficiently) spouses upon marriage to change their surnames. This Court ordered an interim reading-in remedy during the period of suspension. To ensure that the reading-in remedy does not cause further discrimination on the basis of gender, the Court employed the language of the Civil Union Act. The Civil Union Act refers to persons, partners, and spouses, rather than men and women or husbands and wives. This language not only remedies the constitutional defect that exists by unfairly discriminating on the basis of gender, but accords more with the Constitution because it is inclusive of all identities.

The applicants also sought an order directing the first respondent to amend the surname of the first and second applicants’ child to “Jordaan”. This Court found that no case was made out in the High Court, or in this Court, why this relief should be granted. The declaration of invalidity in this matter pertains to the violation of the right to equality on the ground of gender, in the specific context of marriage. It cannot follow, as a matter of course, from the declaration of invalidity that a child whose surname is determined under a different provision of the Act may have their surname changed following such declaration. Accordingly, the first and second applicants will be entitled to apply to the Director-General to change their child’s surname, as provided for under section 25(2) of the Act.

The Court awarded costs against the first respondent..

The Full judgment  here