The Constitutional Court has given Parliament 24 months to review the Births and Deaths Registration Act, following a landmark ruling that allows husbands to legally take their wives’ surnames.
The judgment is seen as a major step towards gender equality and freedom of choice in South Africa.
Concourt Judge Leona Theron explains why the court struck down parts of the Act as unconstitutional:
“This court considers that this practice is largely a colonial import, rooted in patriarchal norms, where women were seen as legally inferior to their husbands and expected to assume their identity.”
WATCH the full judgment below:
Summary of the Judgment
The case challenged section 26(1)(a)-(c) of the Births and Deaths Registration Act (1992), which only allowed women to change their surnames after marriage (e.g., to assume, resume, or add a surname).
Men were excluded from these provisions, meaning husbands could not assume their wives’ surnames.
Court’s Findings
The Court, in a unanimous judgment by Theron J, held that the provisions:
- Unfairly discriminate on the basis of gender, violating section 9(1) and 9(3) of the Constitution (equality).
- Undermine dignity by restricting personal and family identity choices (section 10).
- Perpetuate patriarchal and colonial norms that place men’s surnames above women’s.
- The state conceded that the law was outdated, patriarchal, and unconstitutional.
Order
- The Court confirmed the High Court’s declaration of invalidity.
- Section 26(1)(a)-(c) is declared unconstitutional to the extent that it excludes men from assuming or resuming surnames in the same way women can.
- The invalidity is suspended for 24 months to allow Parliament to amend or replace the legislation.
- In the interim, a reading-in remedy applies:
- Men (married, divorced, or widowed) have the same rights as women to assume, resume, or add surnames after marriage.
- The provisions must be applied in gender-neutral terms.
- If Parliament fails to act within 24 months, the interim remedy remains in force.
- The Minister of Home Affairs must pay the applicants’ legal costs.
READ THE FULL JUDGMENT HERE.
