Authored by Emma de Lange | 6 May 2025

 

Introduction

In September 2024, the High Court of South Africa, Free State, Bloemfontein delivered a judgment with the potential to have a significant influence on the existing legal landscape regulating marital surnames.[1] The judgment declares section 26 of the Births and Deaths Registration Act 51 of 1992 (hereafter referred to as “the Act”) as well as Regulation 18 of the Regulations on the Registration of Births and Deaths, 2014 (hereafter referred to as “the Regulations) unconstitutional, pending confirmation by the Constitutional Court.[2] Societal values undergo constant evolution, requiring the re-evaluation of our law so that we may identify whether reform or amendments are necessary. This case has demonstrated the need to amend our legislation to suit the attributes and values of our ever-changing society.

 

The parties:

The First Applicant and Second Applicant, the wife and husband respectively, are one married couple.[3]

The Third Applicant and Fourth Applicant, the wife and husband respectively form another married couple.[4] 

The First Respondent is The Minister of Home Affairs and the Second Respondent is The Minister of Justice and Constitutional Development.[5]

 

Background – What led the Applicants to court?

The First and Second Applicant got married and were in the process of registering their marriage.[6] The First Applicant had an emotional connection to her surname, therefore both parties agreed that the Second Applicant would assume his wife’s surname after marriage.[7] The First and Second Applicant intended to raise their children with the surname of the First Applicant.[8] The Department of Home Affairs informed the couple that it would not be possible for the Second Applicant to assume his wife’s surname.[9]

The Third and Fourth Applicant got married and were in the process of completing their marriage certificate.[10] The Third Applicant had an emotional connection to her surname and did not wish to part with it.[11] The couple intended to combine their surnames by hyphenating them to create a new surname which both parties would assume.[12] The couple came to the realisation that a provision allowing a female spouse to change her surname after marriage exists, but there is no provision which provides the same option to a male spouse.[13]  The wife assumed the new hyphenated surname and the couple intended to amend the husband’s surname thereafter.[14] Two different offices of the Department of Home Affairs informed the couple that they would not be able to amend the husband’s surname to this effect because the Act did not allow this.[15] The couple attempted to seek assistance from the Director-General via email, but received no response.[16]

 

The problematic provisions:

Section 26(1) of the Act states that no one may assume another surname, unless the Director General has allowed them to.[17] However, there are three circumstances where someone may assume another surname without the Director General’s approval. Firstly, a woman may assume her husband’s surname after marriage, or after assuming her husband’s surname she may revert to any surname which she previously had.[18] Secondly, a widow, married or divorced woman may assume any surname which she previously had.[19] Lastly, a widow, married or divorced woman may add any surname which she previously had to the surname she assumed after marriage (this refers to what is commonly known as a double-barrelled surname).[20]

Section 26(2) of the Act states that the Director General may allow a person to assume another surname if satisfied that there is a good and sufficient reason for them to do so.[21] If a person does not fall within the parameters of section 26(1), they must apply for authorisation from the Director-General in terms of this section. One may think that a male spouse is able to use this section to make an application to assume his wife’s surname, although an obstacle is encountered when looking toward Regulation 18(2)(a) of the Regulations.[22] This regulation states that the reasons referred to in section 26(2) of the Act must relate to the change in the marital status of a woman, thus precluding a male spouse from changing their surname after marriage.[23]

A few submissions by the Applicants:

Amongst other things, the Applicants argued that the provisions “perpetuate gender norms set by a patriarchal society that entrenches gender inequality and differentiates based on sex and gender”.[24] The Applicants relied on section 9(2) of the Constitution which states that “equality includes the full and equal enjoyment of all rights and freedoms”.[25] Additionally, the Applicants relied on section 9(3) of the Constitution, arguing that the State is not allowed to discriminate against anyone based on gender or marital status.[26] The Applicants argued that the Act is archaic because it maintains a patriarchal position which allows a woman to assume a different surname after marriage, but does not provide male spouses with the same choice.[27] It is clear that the Applicants based their argument on the fact that our legislation is not aligned with current societal values which aim to achieve a more equal society in line with the new constitutional dispensation.

 

A few submissions by the Amicus Curiae:

An Amicus Curiae is a friend of the court which could be an individual or a group who is not a party to a matter but assists the court in a matter.[28] The Amicus in this matter, supported the Applicant’s submissions.[29] Amongst other things, the Amicus stated that the limitation that male spouses may not assume a different surname after marriage is unjustifiable.[30] The Amicus held that the provisions perpetuate gender inequality, further stating that the provisions fail to recognise gender equality, gender fluidity and the rejection of strict gender roles which contribute to modern societal values.[31] The Amicus held that the provisions must be declared to be inconsistent with the Constitution because they are discriminatory based on gender.[32]

 

The order of the High Court:

The court held that the Applicants had in fact made out their case and made an order declaring the provisions to be discriminatory and inconsistent with the Constitution.[33] The High Court found the provisions to be unconstitutional.[34] Further, pending the amendment of any existing legislation or coming into force of new legislation, section 26 of the Act will not apply in three instances.[35] Firstly, when a person after marriage, assumes the surname of the man or wife or after having assumed the surname, resumes any surname which they previously had.[36] Secondly, when a widow or widower, a married or divorced woman or man resumes a surname which they previously had.[37] Lastly, a widow or widower, a married or divorced woman or man adds a surname which he or she previously had to the one he or she assumed after marriage.[38] Additionally, the reasons referred to in section 26(2) of the Act must relate to the change in the marital status of a person, rather than a woman.[39] Thus, allowing the Applicants to make the desired changes to their surnames.

 

Noteworthy remarks:

Does this case mean that the provisions are decidedly unconstitutional? No, it does not, this is because a High Court’s finding on unconstitutionality is not final. section 172(2)(a) of the Constitution states that that the Constitutional Court must confirm an order of constitutional invalidity handed down by High Court.[40]

On 4 March 2025, the Constitutional Court heard this matter to confirm or decline the order of constitutional invalidity handed down by the High Court of Bloemfontein.[41] We eagerly wait on the publication of the Constitutional Court judgment to find out whether the South African legal landscape has been changed, taking strides in our persistent endeavours to achieve gender equality. It is evident that the provisions are old fashioned and unsuited to our modern society and new constitutional dispensation and we hold hope that the Constitutional Court upholds the High Court’s decision, confirming the constitutional invalidity of the provisions.

[1] J.J and Others v Minister of Home Affairs and Another 2024 286 (ZAFSHC).

[2] J.J and Others v Minister of Home Affairs and Another 2024 286 (ZAFSHC); Births and Deaths Registration Act 51 of 1992 sec 26; Government Notice R 128, GN, 26 February 2014, 37373 (Regulations on the Registration of Births and Deaths, 2014).

[3] J.J and Others (n 1) paras 4, 5 & 10.

[4] J.J and Others (n 1) paras 6, 7, 13 & 14.

[5] J.J and Others (n 1) paras 8 & 9.

[6] J.J and Others (n 1) para 10.

[7] J.J and Others (n 1, para 11.

[8] J.J and Others (n 1, para 12.

[9] J.J and Others (n 1) para 10.

[10] J.J and Others (n 1) para 14.

[11] J.J and Others (n 1) para 13.

[12] J.J and Others (n 1) paras 13.

[13] J.J and Others (n 1) para 14.

[14] J.J and Others (n 1) para 14.

[15] J.J and Others (n 1) para 15 & 16; Births and Deaths Registration Act (n 2) sec 26.

[16] J.J and Others (n 1) para 16.

[17] J.J and Others (n 1) para 19; Births and Deaths Registration Act (n 2) sec 26(1).

[18] J.J and Others (n 1) para 19; Births and Deaths Registration Act (n 2) sec 26(1)(a).

[19] J.J and Others (n 1) para 19; Births and Deaths Registration Act (n 2) sec 26(1)(b).

[20] J.J and Others (n 1) para 19; Births and Deaths Registration Act (n 2) sec 26(1)(c).

[21] J.J and Others (n 1) para 20; Births and Deaths Registration Act (n 2) sec 26(2).

[22] J.J and Others (n 1) para 22; Births and Deaths Registration Act (n 2) sec 26(1); GN R128 (n 2).

[23] J.J and Others (n 1) para 20; GN R128 (n 2).

[24] J.J and Others (n 1) para 21.

[25] J.J and Others (n 1) para 21; The Constitution of the Republic of South Africa, 1996 sec 9(2).

[26] J.J and Others (n 1) para 21; The Constitution (n 22) sec 9(3).

[27] J.J and Others (n 1) para 22.

[28] Subramanien D ‘Breaking the silence – Friends of the court can adduce evidence’ (2013) 34 Obiter 333.

[29] J.J and Others (n 1) para 24

[30] J.J and Others (n 1) para 24.

[31] J.J and Others (n 1) para 24.

[32] J.J and Others (n 1) para 25.

[33] J.J and Others (n 1).

[34] J.J and Others (n 1).

[35] J.J and Others (n 1).

[36] J.J and Others (n 1).

[37] J.J and Others (n 1).

[38] J.J and Others (n 1).

[39] J.J and Others (n 1); Births and Deaths Registration Act (n 2) sec 26(2).

[40] The Constitution (n 22) sec 172(2)(a).

[41] The Constitutional Court of South Africa ‘Jana Jordaan and Others v Minister of Home Affairs and Another’ 4 March 2025, https://collections.concourt.org.za/handle/20.500.12144/38564 (accessed 9 March 2025).