Names are often treated as purely administrative features of law – fixed details to be recorded, amended or verified. But names are never neutral. They carry personal histories, cultural meaning, family lineage and social identity. They shape how individuals move through society and how families constitute themselves. For many South Africans, particularly women, naming practices have long reflected deeper patterns of gender hierarchy.
In the recent case of Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) [2025] ZACC 19, the Constitutional Court confronted those patterns directly. In a unanimous judgment handed down by Theron J, the Court declared section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 (“The Act”) unconstitutional because it unfairly discriminated on the basis of gender and infringed the right to dignity. The decision represents a significant recalibration of how South African law understands identity, equality and the constitutional value of substantive non-sexism.
1. Understanding the legal framework: names, marriage and the Act
Prior to Jordaan, section 26 of the Act created an asymmetrical regime for marital surname changes. A woman who married a man could freely assume her husband’s surname or resume any prior surname. A man, however, had no reciprocal right. If he wished to assume his wife’s surname, he was required to make an application to the Director-General under section 26(2) of the Act. That application was constrained by regulation of the Regulations on the Registration of Births and Deaths, promulgated under the Act, which limited “good and sufficient reason” for a surname change to only three grounds – including changes in the marital status of a woman.
In practice, this meant that:
- Women could adopt or amend their surname seamlessly upon marriage,
- Men could not adopt their spouse’s surname without bureaucratic intervention,
- Same-sex spouses and couples in civil unions were forced into either the “male” or “female” categories contemplated by the Act,
- And naming practices remained structured around the assumption that a man’s surname is the default identity of the family.
The High Court found this framework unconstitutional. The Constitutional Court was then required to confirm the declaration of invalidity under section 167(5) of the Constitution of the Republic of South Africa, 1996 (“The Constitution) a confirmation it granted.
2. The historical context: the persistence of patriarchal naming norms
A key strength of the Jordaan judgment is its willingness to name the patriarchal origins of South African surname law. The Court traced the practice of women adopting their husbands’ surnames to:
- Roman-Dutch legal traditions, where women entered marriages “cum manu” and fell under the authority of their husbands or their husbands’ families;
- colonial impositions, which brought European naming norms to African societies that often had very different, non-patriarchal practices; and
- English coverture, under which a married woman’s legal identity was “covered” by her husband’s, rendering her legally invisible.
These traditions positioned men as the fixed points of family identity and women as the ones expected to adapt, relinquish or restructure their identity upon marriage.
The Court recognized that these norms, though no longer reflected in modern marital property regimes, continue to shape “ordinary” marital practices. It found that the Act incorporated this gendered history into modern administrative law without justification.
3. Equality analysis: why the Act violated sections 9(1) and 9(3) of the Constitution
Applying the Harksen v Lane framework, the Court conducted a structured equality analysis:
(a) Differentiation
The impugned provisions clearly differentiated between men and women. Women were granted automatic surname choices; men were not.
(b) Legitimate governmental purpose
The state argued that surname regulation aims to ensure administrative order, prevent the creation of arbitrary surnames and maintain consistency in the population register.
The Court accepted that surname regulation is a legitimate governmental function, but held that the gendered distinction created by the Act bore no rational connection to that purpose. Allowing men the same surname options as women would not undermine administrative order.
(c) Discrimination
The differentiation was based on gender, a listed ground under section 9(3). Discrimination on a listed ground is presumed to be unfair unless the state proves otherwise. The state did not attempt to justify the discrimination.
(d) Unfairness
Theron J found the discrimination to be unfair because:
- it entrenched patriarchal stereotypes about whose identity matters in marriage;
- it deprived spouses of equal freedom to express their identity; and
- it impaired dignity by signalling that a man’s surname is inherently more authoritative or enduring than a woman’s.
Crucially, the Court held that both men and women are harmed, though differently – men are denied equal choice, and women are symbolically subordinated within marital identity structures.
4. Dignity, identity and the constitutional value of self-determination
The Court emphasized the centrality of dignity in naming rights. Names are foundational to personhood. To deny an individual the ability to shape their own identity within marriage is to limit their autonomy in an intimate and meaningful aspect of life.
Theron J held that “the decision to take the surname of one’s partner is a matter of defining significance” and that restricting it violates dignity. This is consistent with earlier jurisprudence, including Dawood and Another v Minister of Home Affairs and Others, which recognized the role of dignity in family formation and identity.
5. International and foreign law: a global shift toward gender-neutral surname regimes
In compliance with section 39(1) of the Constitution, the Court considered international and foreign authorities, noting:
- The UN Human Rights Committee’s finding in Müller v Namibia that prohibiting men from adopting their wives’ surnames constitutes unfair sex discrimination;
- European Court of Human Rights jurisprudence in Burghartz v Switzerland, which held that surname rules that favor husbands violate equality and privacy rights; and
- Zimbabwe’s gender-neutral naming framework under its Births and Deaths Registration Act.
The Court found that South Africa’s gendered regime was “out of step” with international equality norms.
6. Why Jordaan matters for South African society
The judgment is important for several reasons.
(a) It affirms substantive gender equality
Equality is not only about eliminating explicit discrimination. It requires transforming laws that perpetuate subtle, structural gender hierarchies.
(b) It acknowledges identity as a constitutional interest
The Court recognizes that identity-forming decisions within families are not trivial; they reflect and shape power relations.
(c) It modernizes South Africa’s legal framework
Many couples – heterosexual, same-sex, and gender-diverse, choose surnames for reasons that reflect culture, grief, lineage, or partnership. The law now recognizes this diversity.
(d) It disrupts patriarchal defaults
For centuries, the husband’s surname has been treated as the “natural” family name. Jordaan makes clear that this assumption has no constitutional basis.
Conclusion
A name is not neutral. It carries the weight of history, the force of culture and the meaning of identity. By striking down gendered surname rules, the Constitutional Court has reinforced that equality is lived not only in courtrooms, but in the small, everyday structures that define how families form and how individuals express themselves.
Jordaan recalibrates South African law toward a more inclusive and constitutionally faithful understanding of gender, identity and autonomy. It signals that in a democratic society committed to non-sexism, no person’s identity should be subordinated to marital tradition, and every family should have the freedom to define itself on equal terms.