JOHANNESBURG – South Africa’s Constitutional Court has struck down sections of the Births and Deaths Registration Act that blocked men from taking their wives’ surnames, declaring the provisions unconstitutional and discriminatory.
The case reached the Constitutional Court after the Free State High Court ruled in September 2024 that Section 26(1)(a)–(c) of the Act violated the constitution by discriminating on the basis of gender.
The Constitutional Court has now confirmed that ruling, saying the sections breached the right to equality under Section 9(1) of the Constitution.
Under the current law, a married woman may automatically assume her husband’s surname, but a man wishing to take his wife’s surname must apply to the Director General of Home Affairs — a process that offers no guarantee of success.
Couples who challenged the law told the courts they faced system failures and bureaucratic indifference when attempting to make such changes.
In one case, applicant Jana Jordaan wished for her husband, Henry van der Merwe, to assume her surname as a way to honour her late parents. The couple were told Home Affairs systems could not process the request.
In another case, Jess Donnelly was allowed to double-barrel her name to Donnelly-Bornman after marriage, but her husband, Andreas Bornman, was denied the same option.
The court said that the offending section violates the principle of rationality on the grounds of gender, and it unfairly discriminates by failing to afford a woman the right to have her spouse assume her surname and to afford a man the right to assume the surname of the woman after marriage.
It also fails to allow for a married or divorced man or widower to resume a surname which he bore at any time; and fails to allow a man, whether married or divorced or a widower, to add to the surname which he assumed after the marriage any surname which he bore at any prior time.
The court suspended the order for 24 months to give parliament time to amend the law. In the meantime, the provisions will not apply in circumstances where a person assumes or resumes a spouse’s surname after marriage, or adds a prior surname.
If parliament fails to act within the two-year window, the court’s order will remain in force until the legislation is corrected.
Rights advocates have hailed the ruling as a landmark victory for gender equality, saying it dismantles outdated laws that treated women’s identities as secondary to men’s.
