The Constitutional Court’s recent decision in Jordaan and Others v Minister of Home Affairs has reshaped how South Africans approach surname changes after marriage. The judgment declared sections of the Births and Deaths Registration Act unconstitutional for restricting surname changes to women, finding that the provisions reinforced outdated assumptions about family identity.
Advocate Mpho Justice Khoza, a lecturer in the Faculty of Law at the North-West University (NWU), says the ruling addresses a long-standing gap in the law. “The Court confirmed that the provisions unfairly discriminated on the basis of gender by assuming that only women would change their surnames after marriage.”
The Court suspended its declaration of invalidity for 24 months to give Parliament time to amend the legislation. However, it granted interim relief, meaning either spouse may now assume or resume a surname after marriage.
“The Department of Home Affairs must immediately process such applications from men as well as women. This has implications for updating passports, identity cards and the population register,” says Adv Khoza.
While the decision affects spousal surname changes, it does not extend automatically to children’s surnames. Parents must continue to make separate applications under existing provisions. Adv Khoza says this distinction highlights the Court’s narrow focus on the immediate discriminatory effect of the Act.
Surname choices no longer bound to one gender
Beyond the legal mechanics, the case reflects broader questions of identity and partnership. “It affirms that surname choices are not bound to one gender. Couples can now make decisions that reflect equality within the family,” he says.
Adv Khoza adds that surname laws often carry symbolic meaning in households and communities, and the ruling encourages new approaches to how identity is passed on.
The ruling also places South Africa in line with global practices. In many countries, either spouse may change surnames following marriage. The Court acknowledged these international developments but rooted its reasoning in constitutional rights to equality and dignity.
Adv Khoza suggests the case may encourage wider reform. “It points to the need for reviewing other laws and administrative forms that still reflect gendered assumptions about family roles.” This could extend to guardianship presumptions and terminology in family-related statutes.
For him, the decision illustrates the Constitutional Court’s continuing role in shaping everyday aspects of personal law. “It demonstrates that constitutional equality must extend into daily life. Even in matters like surname changes, the law must ensure that individuals enjoy autonomy and dignity.”
Advocate Mpho Justice Khoza
