Introduction:
Long-standing legal conventions in South Africa prohibit husbands from adopting the surname of their wives after marriage. In a recent ground-breaking ruling however, two husbands won the right to assume the surname of their wives, paving the way for further steps towards gender equality in South Africa.
Background:
The High Court case JJ and Others v Minister of Home Affairs and Another surfaced after two couples decided to challenge the provisions contained in Section 26(1) (a)-(c) of the Births and Deaths Registries Act 61 of 1992 (“the Act”), which enforces and maintains certain gender roles as a norm of society.
The applicants JJ, HvdM, Jess Donelly-Borman and Andreas Nicolaas Borman approached the court seeking an order, inter alia, in the following terms:
That Section 26(1)(a)-(c) of the Act be declared unconstitutional to the extent that it discriminates on the ground of gender, by failing to afford a female person the right to have her spouse assume her surname and failing to afford a male person the right to assume the surname of the woman with whom they conclude a marriage
During the process of registering their marriage on the 15th July 2021, the first and second applicants were informed by the official assisting them at the Department of Home Affairs (“DHA”), that the system did not allow the husband to assume the wife’s surname. The applicants intended on the surname of JJ to be carried over to their child(ren) as her parents had passed away when the child(ren) were very young and they wished to carry over that legacy accompanied by the surname.
The third and fourth applicant got married in 2022. The wife hyphenated her surname when completing the marriage certificate and the intention was that they would visit the DHA to amend the husband’s surname as soon as possible. They twice attempted to have his surname changed, but both attempts were met with unsatisfactory answers from DHA officials. Upon their third attempt at George DHA, they were informed by an official that the Act did not permit the type of amendment sought.
The Act:
Section 26(1) of the Act states that no person shall assume or describe him-or herself by or pass under any surname other than that under which he/ she has been included in the population register unless the Director -General (“DG”) has authorized him/her to assume that other surname. The Section further allows for certain exemptions: the authorization of the DG is not required where:
- a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his surname, resumes a surname which she bore at any prior time;
- a married/ divorce woman or widow resumes a surname which she bore at any prior time;
- a woman (married, divorce, widow) adds to the surname which she assumed after the marriage any surname which she bore at any prior time.
Clearly the Act only provides for exemptions relating to a change in the marital status of a woman. Any other person not falling within the ambit of this Section must apply to the DG for consent to assume a different surname with suitable and sufficient reasons for such a change. That explicitly excludes any male person from the exemptions.
In direct contrast to the abovementioned provisions, Section 9(3) of the Constitution of the Republic of South Africa, 1996 stipulates that the State may not unfairly discriminate directly or indirectly against anyone based on, among other things, gender or marital status. The cornerstone of our Constitution is the establishment of a society in which all human beings will be afforded equal dignity and respect regardless of, inter alia, their race or gender.
The applicants argued that the Act is unconstitutional as it has retained an archaic and patriarchal default position that only women are entitled, as of right, to assume a different surname, thereby unfairly discriminating against our constitutional right of gender equality.
The Act declared unconstitutional by Judge Mhlambi:
Impartial advisors of the court (the amicus) supported the arguments held by the applicants in that the limitation in the Act was not justifiable under the Section 36 limitation clause of our Constitution for the following reasons:
- It perpetuates gender inequality;
- It fails to recognize modern social values like gender equality and fluidity in identity choices;
- It is intrusive and serves no compelling state interest in that it requires government involvement in a profoundly personal decision;
On 12 September 2024, after hearing the applicants arguments and taking into consideration the contentions of the amicus, Judge Mhlambi granted an order that Section 26(1)(a)-(c) of the Act should be held to be inconsistent with the Constitution because it unfairly discriminates based on gender.
Conclusion:
South Africa has come a long way in enforcing equality and this case is a further positive step in the right direction. The finding of Constitutional inconsistency is set to be reviewed by the Constitutional Court and the final verdict will determine the future of surname conventions in marriages across the nation.
Article written by Faure & Faure Inc attorney / conveyancer Erika le Roux.
