THE LEGAL WEIGHT OF A NAME

Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] 

On 11 September 2025, the Constitutional Court confirmed that Section 26(1)(a) - (c) of the Births and Deaths Registration Act 51 of 1992 (“the Act”), unfairly discriminated on the ground of gender and infringed dignity by permitting only women, and not men, to assume a spouse’s surname, to resume a prior surname, or to “double-barrel” a married surname.

The Court suspended the declaration of invalidity for 24 months to allow Parliament to fix the law but immediately read in a gender-neutral interim regime: any person may, on marriage, assume a spouse’s surname; resume any prior surname; and add a prior surname to the one assumed after marriage. If Parliament does nothing within 24 months, the interim regime remains in place. Costs were also awarded against the Minister of Home Affairs. 

The Court did not change the separate rules for children’s surnames (still governed by s 25(2) of the Act); parents must continue to use that mechanism for minors. 

The facts in a nutshell: 

Two married couples approached the courts after Home Affairs officials told them that only a female spouse may amend her surname on marriage; a husband may not take his wife’s surname or hyphenate both surnames under the automatic exceptions in S26(1). In one couple, the husband wished to assume his wife’s surname “Jordaan” to preserve her family ties; in the other, the couple intended to use “Donnelly-Bornman” as their shared family surname. 

The Court’s reasoning

Applying Harksen v Lane’s equality framework, the Court held that the impugned provisions differentiate on the listed ground of gender, do not serve a legitimate government purpose, amount to unfair discrimination under S9(3) of the Constitution, and impair dignity contrary to S10 of the Constitution. The State’s suggested purpose  of surname regulation was not advanced by excluding men, because even on a gender-neutral reading one may still only assume an existing, connected surname (that of the spouse or a previously borne surname). The discriminatory scheme deprived men of equal choice and reinforced patriarchal norms that make women’s identity expression relational to a husband as a governmental default. The limitation was not justified under S36 of the Constitution. 

What was struck down (and what was not):

The Constitutional Court confirmed the High Court’s order declaring S26(1)(a) - (c) of the Act unconstitutional to the extent that they:

1. fail to allow a woman to have her spouse assume her surname; 

2. fail to allow a man to assume his spouse’s surname after marriage; and (

3. fail to allow men to resume or add a prior surname. 
   

The Court did not separately confirm invalidity of Regulation 18(2)(a), stating that the High Court’s order on the regulation stands. 

The remedy: suspension and an immediate, gender-neutral “reading-in”

To avoid administrative chaos while Parliament fixes the statute, the Court:

1. Suspended the declaration of invalidity for a period of 24 months; and

2. Read in an interim, gender-neutral version of s S26(1), using the inclusive language of the Civil Union Act 17 of 2006 (“person”, “spouse”). With immediate effect, any person may:

3. on marriage, assume the spouse’s surname;

4. resume any prior surname (married, divorced, widow(er)); and

5. add a prior surname to the one assumed after marriage (enabling “double-barrelled” or hyphenated surnames).
   

If Parliament misses the 24-month deadline, the interim regime continues until remedial legislation commences. 

What the judgment does not change:

1. Children’s surnames: the application to change a child’s surname still proceeds under S25(2) of the Act.  The Court declined to order a child-surname change within this case, emphasising that a different statutory provision governs minors. 

2. Inventing brand-new surnames: the Act continues to regulate against creating surnames with no family connection. The interim reading-in allows assuming a spouse’s existing surname and adding a surname one has previously borne. 
   

The role this case will play in South African law on name changes:

Right now, married spouses regardless of sex or marriage regime have identical automatic options under S26(1) of the Act as read in: any spouse may assume the other’s surname, resume a prior surname, or add a prior surname to the assumed one. This ends the historic asymmetry that privileged husbands’ surnames as the family default and excluded many same-sex spouses. Home Affairs must administer applications on a gender-neutral basis. 

Conclusion: 

Jordaan is a landmark for marital naming rights and a practical win for equality and dignity. It ends a statutory scheme that treated a husband’s surname as the default family name and restricted men’s (and many same-sex spouses’) choices.