Background of the case
The challenge began in the High Court of South Africa, Free State Division in Bloemfontein.  The couples approached the High Court to declare Section 26(1)(a)-(c) of the Act unconstitutional, claiming that it was discriminatory against husbands. In September 2024, the Bloemfontein High Court sided with them.  The court found that these provisions were unfairly discriminatory. Furthermore, it also ruled Regulation 18(2)(a), which only allows women to assume another surname when there is a change in their marital status, unconstitutional because it discriminated against men by not allowing them to change their surnames after getting married. 

Under South Africa’s constitutional framework, such declarations on constitutional invalidity of statute by a High Court requires confirmation by the Constitutional Court in terms of section 167(5) of the Constitution.  Accordingly, the matter was referred to the apex court in confirmation of the High Court order.

Equality and dignity
At the heart of the matter, the ConCourt had to determine whether the law’s gender-specific provisions in section 26(1)(a) – (c) of the Act violated the rights to equality (section 9) and dignity (section 10) of the Constitution.  The respondents, being the Minister of Home Affairs and the Minister of Justice and Constitutional Development, did not oppose the confirmation of the declaration of unconstitutionality.  On the contrary, they conceded that the impugned provisions of the Act are essentially rooted in colonialism and patriarchal norms.  These provisions found their way into South African law through the reception of Roman-Dutch law, which entrenched the custom that a wife assumes her husband’s surname.  

The rule of law
The ConCourt applied the two-stage test laid down in the Harksen v Lane N.O. and Others (CCT9/97) [1997] ZACC 12 (7 October 1997) as a test to determine unfair discrimination which states the following:

1. Did the law differentiate between people? In casu, yes. The provisions of section 26(1)(a)–(c) treated husbands and wives differently, on basis of gender. The next determination is whether this differentiation serves a legitimate government purpose and in this case the court held that the differentiation served no legitimate government purpose. When a provision fails this test, as it does in this case, that provision is said to have violated section 9(1) being the guarantee of equality in the Constitution. 
2. Is the discrimination unfair? In casu, yes. The provisions entrenched patriarchal norms and denied husbands the freedom to choose their identity in so far as spousal surnames are concerned and cannot be saved under section 36 of the Constitution which lays out the grounds on which a right contained in the Bill of Rights may be limited. 

The ConCourt stressed that both men and women are negatively affected, wherein men are barred from sharing their wives’ surnames. In the case of women, it is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname.  It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default.

Judgment and outcome
The ConCourt confirmed the order declared by the High Court that the provisions of section 26(1)(a)-(c) are indeed unconstitutional.  Parliament, being the legislative arm of government, was given 24 months to remedy the defect in the statute. In the interim, the ConCourt ordered that the section be read in gender-neutral terms, allowing either spouse to assume or resume a surname. 

Engaging the national dialogue
Much of the public debate has been populated by misconceptions. This judgment is not about undermining tradition but about ensuring that spouses have a freedom of choice with regards to assuming a spousal surname. Spouses remain free to follow cultural or religious customs, and more specifically with reference to lobola and other customary practices. What changes, however, is that the law can no longer enforce patriarchal defaults in so far as barring spouses from assuming their partner’s surname after marriage.

Impact of the judgment
The decision affirms that surnames are about identity, dignity, and equality. Before the declaration of the constitutional invalidity of section 26(1)(a)–(c) of the Act, it was legally impossible for husbands to assume their wives’ surnames, let alone create double-barrel surnames to preserve and appreciate family ties. The current position is that husbands can now legally assume their wives’ surnames, and either spouse can assume or combine surnames, creating a double-barrel surname, without any form of discrimination. The ruling aligns South African law with the spirit, purport and objects of the Bill of Rights as entrenched in the Constitution and the gender-neutral language already employed in the Civil Union Act 17 of 2006 .

The ConCourt did not find it necessary to confirm the constitutional invalidity of Regulation 18(2)(a), noting that it is not an Act of Parliament but rather a form of delegated authority exercised by  Ministers under statutory authority.  Put differently, a High Court is well within its jurisdiction to declare a regulation constitutionally invalid. Regulations must therefore be interpreted together with the parent Act. Consequently, through the ConCourt declaring section 26(1)(a)–(c) unconstitutional and employing an interim relief of reading in gender-neutral language, the interpretation also applies to the accompanying regulations.

By scrapping an outdated colonial and patriarchal law, the Constitutional Court confirmed that the right to choose a surname belongs to both spouses, not just wives. In doing so, the Court has taken another step towards the realisation of the promises as embedded in our Constitution, in this case being the promise of equality and dignity for all South Africans.