The Constitutional Court (ConCourt) is reviewing the constitutionality of Section 26(1) of the Births and Deaths Registration Act, following a legal battle initiated by two husbands who were denied the right to assume their wives’ surnames after marriage. The case, which highlights gender discrimination in South Africa’s legal framework, has reignited debates about marital identity and equality.
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Legal Challenge Against Section 26(1)
Two married couples, Jess Donnelly-Bornman and Andreas Bornman, brought the case before the Constitutional Court after facing bureaucratic hurdles when trying to change their surnames. The Department of Home Affairs refused their requests, citing Section 26(1)(a) to (c) of the Act and Regulation 18(2)(a), which only permits women to assume their husband’s surname but not vice versa.
This legal challenge follows a September 2024 ruling by the Free State High Court, which found these provisions unconstitutional for discriminating based on gender. The ConCourt is now expected to determine whether to confirm the High Court’s decision and strike down the discriminatory law.
Arguments in the Constitutional Court
During the hearing, Advocate Neil Snellenburg argued that the current law infringes on gender equality and violates constitutional rights. He highlighted two key cases:
- In the first case, a husband wished to take his wife’s surname due to its deep personal and sentimental value, as she lost her biological parents at a young age.
- In the second case, a wife wanted to preserve her maiden surname as she was an only child, and her husband proposed a hyphenated surname to maintain a unified family identity.
Snellenburg pointed out that the Ministers of Home Affairs and Justice conceded that the law is outdated and has no legitimate government purpose. He argued that this practice stems from historical gender norms that are no longer relevant in modern society.
Potential Implications & the Need for Legal Reform
If the ConCourt confirms the unconstitutionality of Section 26(1), it could pave the way for legal reforms allowing husbands to adopt their wives’ surnames. However, Snellenburg emphasized that legislative amendments would take time, as the process involves policy changes, administrative adjustments, and budget considerations.
To address these concerns, he requested a 24-month suspension of the invalidity declaration, allowing lawmakers to draft new regulations while preventing immediate disruptions to Home Affairs processes.
What’s Next?
The ConCourt has reserved judgment, meaning a final ruling will be issued at a later date. If the ruling favors the applicants, it could mark a significant step toward gender equality in marriage laws and identity rights in South Africa.
Key Takeaways:
✅ The case challenges gender discrimination in surname adoption laws.
✅ The ConCourt is reviewing a Free State High Court ruling that found Section 26(1) unconstitutional.
✅ If the law is struck down, husbands could be legally allowed to take their wives’ surnames.
✅ A 24-month suspension of the invalidity ruling has been proposed to allow for legislative amendments.
This case reflects South Africa’s ongoing efforts to align legal policies with the constitutional principles of equality and non-discrimination. If successful, it could set a precedent for future marriage-related legal reforms.
