The case, brought by two couples, was decided in their favor after the court found the restriction to be a “colonial import” that discriminated on the basis of gender. Henry van der Merwe had been prevented from taking the surname of his wife, Jana Jordaan, while Andreas Nicolas Bornman was not permitted to add his wife Jess Donnelly’s surname to his own.
For the ruling to be implemented, Parliament must now revise the Births and Deaths Registration Act and its related regulations. The law in question dated back to South Africa’s white-minority rule.
The couples argued that the measure was outdated, patriarchal, and inconsistent with the equality protections in the post-apartheid constitution of 1994. They first won their case in a lower court, then sought confirmation from the Constitutional Court.
In its decision, the court pointed out that many African traditions allowed women to keep their birth names and children to use their mother’s clan names, but these practices were altered with the arrival of European colonizers and missionaries who imposed Western norms. The court explained that the practice of wives taking their husbands’ surnames came from Roman-Dutch law and colonial legislation across southern Africa.
While recognizing progress toward gender equality, the court stressed that remnants of discriminatory practices still endure. Government ministers, including those for Home Affairs and Justice, did not oppose the application, agreeing that the law was outdated.
The Free State Society of Advocates also supported the couples, noting that preventing men from adopting their wives’ surnames reinforced harmful stereotypes by denying them a choice that women already had.
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