Published On: February 5th 2026
Authored By: Gift Portia Mamba
University of Forthare
- Title: Jordaan and Others v Minister of Home Affairs and Another [2025] ZACC 19 (11 September 2025)
- Court: Constitutional Court of South Africa
- Bench: Theron J (Madlanga ADCJ, Dambuza AJ, Kollapen J, Majiedt J, Mhlantla J, Opperman AJ, Rogers J, Tshiqi J concurring)
- Date of Judgment: 11 September 2025
- Relevant Provisions/Statutes: Section 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992; Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014; Sections 9 (equality) and 10 (dignity) of the Constitution.
Facts of the Case
The first applicant is Ms Jana Jordaan (JJ), who is married to the second applicant, Mr Henry van der Merwe (HVDM). The third applicant is Ms Jess Donnelly-Bornman (JDB), who is married to the fourth applicant, Mr Andreas Nicolaas Bornman (ANB). The first and second respondents are the Minister of Home Affairs and the Minister of Justice and Constitutional Development. JJ and HVDM agreed before their marriage that HVDM would assume the surname of JJ to preserve her familial ties to her deceased biological parents. They were, however, informed by the first respondent that it would not be possible for HVDM to assume the surname of JJ.
JDB also wished to retain her surname to preserve familial ties with her biological parents as an only child. JDB and ANB opted to combine their surnames at marriage, but when they wanted to change their surname to that of JDB, they were informed by the first respondent that only a female spouse may amend her surname and not a male spouse. The four applicants successfully obtained an order from the High Court wherein the said section 26(1)(a)-(c) was declared unconstitutional on the ground that it discriminates on the basis of gender. Regulation 18(2)(a) of the Regulations, which regulates the change of marital status of a woman, was also declared unconstitutional by the said Court. Applicants sought a confirmation of the declaration of invalidity in terms of section 167(5) of the Constitution in the Constitutional Court.
Legal Issues
The Court: Theron J (Madlanga ADCJ, Dambuza AJ, Kollapen J, Majiedt J, Mhlantla J, Opperman AJ, Rogers J, and Tshiqi J concurring) identified the following central legal issues:
- Whether section 26(1)(a) to (c) Births and Deaths Registration Act complies with the Constitution
- The constitutional validity of regulation 18(2)(a) under the Regulations
- The suitable remedy to be applied
Judgment
The Constitutional Court ruled that sections 26(1)(a)–(c) of the Births and Deaths Registration Act 51 of 1992 are unconstitutional because they discriminate based on gender by allowing only female spouses to adopt their spouses’ surnames upon marriage. The Court determined that these provisions violate the right to equality under section 9 of the Constitution by denying men the ability to take their spouses’ surnames and by reinforcing patriarchal gender norms that subordinate women’s identities to those of their husbands. The Court further held that this limitation could not be justified under section 36 of the Constitution.
Ratio Decidendi
Differentiating between spouses in the ability to adopt each other’s surnames based on gender constitutes unfair discrimination under section 9 of the Constitution. Such differentiation does not serve any legitimate governmental purpose and perpetuates harmful gender stereotypes by privileging male surnames as the default family identity. Any statutory framework governing surnames must be gender-neutral, fair, reasonable, and inclusive of all spouses. Legislation that reinforces patriarchal norms and restricts individual identity expression based on gender fails to meet the equality standard and cannot be constitutionally upheld.
Obiter Dictum
The Court noted that laws regulating names and identity should use gender-neutral and inclusive language, akin to that found in the Civil Union Act. This approach better aligns with the constitutional values of equality and dignity while avoiding the reinforcement of patriarchal norms.
Final Decision
The Constitutional Court confirmed the High Court’s declaration of constitutional invalidity regarding sections 26(1)(a)–(c) of the Act. This declaration of invalidity will be suspended for 24 months to allow Parliament to rectify the issue. During this suspension period, an interim application will use gender-neutral language consistent with the Civil Union Act. The High Court’s order to strike down regulation 18(2)(a) remains unchanged. The application to change the child’s surname was denied, and the applicants were directed to follow the statutory procedure outlined in section 25(2) of the Act. Costs were awarded against the first respondent.
Conclusion
The case of Jordan shows that achieving true equality under the Constitution means not just getting rid of discriminatory laws but also changing everyday practices that continue to support gender bias. By affirming that both partners can choose to take each other’s surname, the court promotes equality and personal dignity while respecting cultural choices. The judgment thus stands as a reminder that real change involves addressing the subtle signs of patriarchy in our legal and administrative systems.
