By Lehlohonolo Lehana.
The Constitutional Court has ruled that men are allowed to assume their wives’ surnames, declaring Section 26(1)(a) to (c) of the Births and Deaths Registration Act unconstitutional for unfairly discriminating on the basis of gender.
The matter was first heard in the Constitutional Court in March, following a previous ruling in the Free State High Court in September 2024.
The matter was brought forward by two couples, Jana Jordaan and Henry Van Der Merwe, alongside Jess Donnelly-Bornman and Andreas Nicolas Bornman.
In one case, Jordaan wanted Henry to take Jordaan’s surname as a way to honour her parents, who passed away when she was young.
However, after their marriage, they were told that the Home Affairs system does not allow men to assume their wives’ surnames.
The High Court ordered that a man could assume his wife’s surname or have a double-barrelled surname in marriage, ruling that Section 26(1)a to c of the Births and Deaths Registration Act is unconstitutional.
The Constitutional Court has now upheld the High Court ruling, saying that the sections discriminate on the basis of gender.
Under the current wording of the laws, a husband cannot take his wife’s surname without an application to Home Affairs seeking permission to do so.
Section 26(1) of the Births and Deaths Registration Act says that no individual can assume any other name than the one recorded in the population register, except that a married woman can change her name to her husband’s.
A heterosexual man would have to apply to the Director-General of Home Affairs for permission to change his name.
However, even if an application is made, there is no guarantee that this will be granted. In the cases brought before the courts, little attempt was made to help the couples seeking the changes.
According to the Constitutional Court ruling, Justice Lerona Theron said section 26(1)A to C of the Births and Deaths Registration Act 51 of 1992 is unconstitutional as it is in violation of section 9(1) of the Constitution.
Theron said that it 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.
Theron deemed the section invalid, suspending it for a period of 24 months to enable parliament to remedy the defects.
This can be done either by amending the existing legislation to bring it in line with the Constitution or by passing new legislation to ensure that all persons are afforded the right of assumption of another surname.