Two ordinary South African couples challenged a discriminatory law that prevented men from taking their wives' surnames. Their case led to a landmark Constitutional Court victory in September 2025, sparking nationwide debate on gender equality .
Problems and Purpose
Since the dawn of democracy in 1994 and the advent of the new dispensation, South Africa has been guided by the Constitution. The Constitution is both a legal and living framework that defines South Africa's values and outlines the structure of government, the legislature, the executive, and the judiciary. Chapter Two, the Bill of Rights, serves as the cornerstone of our democracy. It protects fundamental human rights and enshrines the principles of dignity, equality, and freedom. Section 9(2) of the Bill of Rights states: "Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken" (Republic of South Africa, 1996, p. 5). This principle of equality is central to this case study. The Constitution does not simply guarantee formal equality before the law; it demands substantive equality that addresses historical disadvantages and challenges systemic discrimination wherever it appears.
Despite the progressive nature of the Constitution, issues of patriarchal norms remain embedded in law and practice. For years, men in South Africa were legally not allowed to adopt their wives' surnames after marriage unless they went through an expensive and time-consuming process of a formal name change. Women, however, could automatically assume their husband's surname through marriage registration. This discrepancy was evident and represented a violation of Section 9(2) of the Bill of Rights, as described above, by creating differential treatment based solely on gender.
The purpose of Jordaan and Others v Minister of Home Affairs and Another was therefore twofold. First, it sought to correct this legal inconsistency and to challenge the patriarchal norms and assumptions that constrained men's rights to determine their own identity within marriage. Second, it aimed to demonstrate how citizens could utilise constitutional tools to challenge outdated norms and create wider societal conversations about gender, equality, and culture.
Beyond this, the case served a deeper democratic function. It illustrated that the Constitution is not merely a document that sits in archives or is interpreted only by judges and legal scholars. Instead, it is a living instrument that ordinary citizens can use to reshape their society. This understanding of the Constitution as a participatory tool is crucial for democratic health. When citizens see themselves as capable of engaging with and influence the constitution, they arguably become more invested in democratic processes and more willing to hold institutions accountable.
Background History and Context
The case began when a married couple, Mr Henry van der Merwe and Ms Jana Jordaan, approached the Department of Home Affairs (DHA) in 2021, requesting that Mr van der Merwe take his wife's surname. According to court documents, "the first and second applicants were married in Bloemfontein in 2021. They had agreed, prior to their marriage, that the second applicant would assume the surname of the first applicant in order to preserve her familial ties to her deceased biological parents" (Jordaan and Others v Minister of Home Affairs and Another, 2025, para. 9). Their request was denied.This seemingly simple administrative request revealed a much larger problem. The couple had made a personal decision about how they wanted to structure their family identity. For Ms Jordaan, maintaining her surname was about honouring her connection to her deceased parents and preserving that familial link. For van der Merwe, taking his wife's surname represented respect for his partner's heritage. Yet the state told them that their personal choice violated administrative procedures based on outdated gender assumptions.
Under the Department's interpretation of the Births and Deaths Registration Act (BDRA) of 1992, only women could assume their husband's surname through marriage registration, while men had to undergo a formal and costly application under the Alteration of Names Act (ANA) of 1963.
A similar issue arose for the third and fourth applicants, Jess Donnelly-Bornman and Andreas Bornman. According to the judgment, Donnelly-Bornman and Bornman married in 2020 and "agreed that the fourth applicant [Andreas Bornman] would assume the third applicant's [Jess Donnelly-Bornman's] surname" (Jordaan and Others v Minister of Home Affairs and Another, 2025, para. 10). Like van der Merwe and Jordaan, they approached the Department of Home Affairs to effect this change and were informed that the only avenue available was through the lengthy and expensive process under the Alteration of Names Act. The couple found this requirement both financially burdensome and discriminatory, as women faced no such obstacle when taking their husbands' surnames.The fact that two separate couples encountered this problem independently suggests that this was not an isolated administrative quirk but rather a systemic issue affecting numerous South Africans. It is likely that many other couples faced similar obstacles but chose not to pursue legal action, either because of the costs involved or because they were unaware that the discriminatory practice could be challenged. This highlights an important aspect of participatory democracy: often it takes just a few determined individuals to challenge an unjust practice, but their success benefits countless others who face the same barriers.
When the applicants' requests were rejected, they turned to the courts, arguing that the Department's interpretation violated constitutional guarantees of equality (Section 9), dignity (Section 10), and freedom of expression (Section 16). The Constitutional Court unanimously agreed. It held that the DHA's interpretation of the BDRA was inconsistent with the Constitution and unfairly discriminated on the basis of gender.
Importantly, the court also considered arguments based on customary law. Some traditional leaders claimed that allowing men to adopt their wives' surnames would erode cultural norms and the patriarchal lineage system central to many African family structures (Diala, 2025). The Court acknowledged the importance of custom in shaping identity but reaffirmed that culture cannot override constitutional principles.
This tension between cultural tradition and constitutional rights is one of the most challenging aspects of South Africa's democratic project. The Constitution itself recognises and protects customary law and cultural practices, while also establishing non-negotiable principles of equality and dignity. Navigating this requires careful deliberation and a willingness to engage with difficult questions about how tradition evolves in a constitutional democracy. The court's approach in this case was instructive: it did not dismiss or denigrate traditional practices, but it firmly established that no cultural tradition can justify unfair discrimination.
Organizing, Supporting, and Funding Entities
The applicants were not activists but ordinary South Africans who believed in fairness and equality. However, their legal challenge was supported by civil society organisations advocating for gender justice and constitutional rights. Legal assistance was provided by pro bono advocates and attorneys, while the Free State Society of Advocates was admitted as amicus curiae (friends of the court). "The amicus curiae supported the argument advanced by the applicants that the impugned provisions perpetuated patriarchal gender norms in violation of section 9, the right to equality of the Constitution and unfairly discriminated on the basis of gender" (Jordaan and Others v Minister of Home Affairs and Another, 2025, para. 9).
The participation of the friends of the court was significant. They reinforced the applicants' arguments that the Department's policy perpetuated patriarchal gender norms in violation of Section 9 of the Constitution. The amicus curiae submissions reflected the voice of broader society, representing a form of civic participation. In this way, participation extended beyond the four individual applicants; it included civil society and professional legal networks that shaped constitutional interpretation.
The role of pro bono legal assistance in this case cannot be overstated. Constitutional litigation is expensive and time-consuming, often placing it beyond the reach of ordinary citizens. Research on access to justice in South Africa has consistently demonstrated that legal costs present a significant barrier to constitutional litigation for most citizens. (Jeffery, 2019). When lawyers and advocates provide their services without charge, they enable citizens who lack financial resources to access justice and challenge unconstitutional practices. This form of professional unification is in itself a type of democratic participation. The court, therefore, became a deliberative forum. The applicants presented their personal experiences and legal arguments. The friends of the court brought broader societal perspectives on gender equality. The Department of Home Affairs had to defend its interpretation of the law. Traditional leaders who intervened in the case raised concerns about cultural preservation. All of these voices contributed to a rich deliberative process that ultimately produced a more nuanced and well-considered judgment.
Media attention also helped to frame the case as one of equality and identity rather than personal preference. Following the judgment, news outlets such as The Conversation (Diala, 2025) and mainstream South African press covered the story extensively, presenting analysis from legal scholars, traditional leaders, and gender equality advocates. This coverage translated a technical legal ruling into accessible public discourse.
This bottom-up form of activism demonstrates that citizens can influence constitutional meaning through institutional channels, transforming private struggles into collective victories. The media's role in amplifying the case demonstrates another layer of democratic participation: journalists and media platforms serving as intermediaries who make legal proceedings accessible to the broader public and facilitate nationwide conversations about important constitutional issues.
Participant Recruitment and Selection
Participation in this case was both direct and symbolic. The four applicants were the visible participants, supported by their legal teams and the friends of the court. Yet the implications of their action were far-reaching. These two couples stood in for countless other South Africans who might face similar discrimination, whether in relation to surnames or other aspects of identity and family life.
Through the court process, participation extended into a civic dialogue about identity and equality. The case reminded South Africans that democratic engagement does not always take the form of protest or petition, but can also unfold through the judicial process. This is an important lesson for citizens in constitutional democracies: the courts are not distant, inaccessible institutions reserved for lawyers and elites. They are public forums where citizens can bring grievances, challenge unjust laws, and participate in shaping the meaning of constitutional rights.
Following the judgment, participation widened. The story gained traction in national media and sparked debate on platforms like SAFM's The National Pulse (2025) where traditional leaders, legal scholars, and gender activists discussed the implications (SAFM, 2025). Some critics argued that the decision undermined African custom, while others celebrated it as a step toward breaking down entrenched gender hierarchies.
Public deliberation following the judgment demonstrated what Bächtiger et al. (2020) describe as deliberative participation, whereby citizens reason together about moral and political issues. These discussions reflected that democracy is in motion and that citizens are able to interpret the meaning of equality and identity in their own words. Ordinary South Africans called into radio programmes, wrote opinion pieces, and debated with family and friends about what the judgment meant for their understanding of gender, family, and tradition. This widespread engagement represents a form of participation that is often overlooked: the everyday conversations through which citizens collectively process and make sense of legal and political developments.
Methods and Tools Used
The central method of participation in this case was constitutional litigation, which serves as a democratic tool allowing citizens to hold the state accountable (Gloppen, 2006, pp. 5-10). By bringing their case before the judiciary, the applicants participated in governance through legal means, thereby transforming a private dispute into a public issue.
Constitutional litigation serves several participatory functions. First, it allows citizens to directly challenge government action or inaction that they believe violates their rights. Second, it creates a public record of the dispute and the reasoning behind the court's decision, which educates other citizens about their rights and responsibilities. Third, it establishes legal precedents that protect not just the individual applicants but all similarly situated citizens. Fourth, it often sparks broader public conversations about the values and principles at stake in the case.
Beyond the courtroom, public dialogue became another participatory tool. Citizens engaged through radio talk shows, opinion pieces, and social media. This informal participation allowed people to deliberate about the judgment's implications for gender, custom, and equality. While these conversations lacked the formal structure of court proceedings, they were no less important for the functioning of democratic life. Through debate and discussion, citizens worked through their own feelings about the case, challenged each other's assumptions, and collectively refined their understanding of what equality means in practice.
Through these processes, participation moved from formal legal channels to the broader social sphere. The case illustrated how participation can evolve: beginning with litigation, deepening through the involvement of civil society, and continuing through public deliberation and debate. Each stage of participation reinforced and amplified the others, creating a cascade of democratic engagement that extended far beyond the original four applicants.
What Went On: Process, Interaction, and Participation
After months of legal deliberation, the Constitutional Court handed down its decision in September 2025. The Court found that the Department's policy unfairly discriminated against men, violating the rights to equality (Section 9), dignity (Section 10), and freedom of expression (Section 16) (Jordaan and Others v Minister of Home Affairs and Another, 2025, paras. 1, 43–44).
The judges reaffirmed that a person's name forms part of their identity and that identity belongs to the individual, not to the state or cultural traditions. The Court further noted that the Department's interpretation reinforced outdated ideas about gender roles and failed to reflect the values of a democratic society (Jordaan and Others v Minister of Home Affairs and Another, 2025, paras. 36–38). This emphasis on individual autonomy over identity is crucial. It recognises that in a diverse democracy, people must be free to define themselves and their families according to their own values and preferences, as long as they do not harm others.
The immediate administrative outcome was that men could now assume their spouses' surnames directly through the marriage registration process, without the time-consuming procedure under the ANA. The Department of Home Affairs was instructed to amend its policies and retrain staff accordingly. This practical implementation aspect is often overlooked in discussions of constitutional cases, but it is vital. A court judgment only becomes meaningful when it translates into changed practices on the ground. The Department would need to update its forms, procedures, and computer systems, and train staff members across the country to implement the new policy correctly.
The decision sparked a national conversation about masculinity, custom, and the evolving nature of families. Radio stations such as SAFM hosted discussions featuring traditional leaders, constitutional law experts, and ordinary callers debating the implications (SAFM, 2025), while print and online media published opinion pieces from various perspectives (Diala, 2025). People began questioning other gendered assumptions built into law and administrative practice. If men could take their wives' surnames, what other gender-based distinctions in law might be unconstitutional? This ripple effect is one of the most important impacts of constitutional litigation: it prompts citizens and institutions to examine practices they previously took for granted.
What Went On: Process, Interaction, and Participation
After months of legal deliberation, the Constitutional Court handed down its decision in September 2025. The Court found that the Department's policy unfairly discriminated against men, violating the rights to equality (Section 9), dignity (Section 10), and freedom of expression (Section 16) (Jordaan and Others v Minister of Home Affairs and Another, 2025, paras. 1, 43–44).
The judges reaffirmed that a person's name forms part of their identity and that identity belongs to the individual, not to the state or cultural traditions. The Court further noted that the Department's interpretation reinforced outdated ideas about gender roles and failed to reflect the values of a democratic society (Jordaan and Others v Minister of Home Affairs and Another, 2025, paras. 36–38). This emphasis on individual autonomy over identity is crucial. It recognises that in a diverse democracy, people must be free to define themselves and their families according to their own values and preferences, as long as they do not harm others.
The immediate administrative outcome was that men could now assume their spouses' surnames directly through the marriage registration process, without the time-consuming procedure under the ANA. The Department of Home Affairs was instructed to amend its policies and retrain staff accordingly. This practical implementation aspect is often overlooked in discussions of constitutional cases, but it is vital. A court judgment only becomes meaningful when it translates into changed practices on the ground. The Department would need to update its forms, procedures, and computer systems, and train staff members across the country to implement the new policy correctly.
The decision sparked a national conversation about masculinity, custom, and the evolving nature of families. Radio stations such as SAFM hosted discussions featuring traditional leaders, constitutional law experts, and ordinary callers debating the implications (SAFM, 2025), while print and online media published opinion pieces from various perspectives (Diala, 2025). People began questioning other gendered assumptions built into law and administrative practice. If men could take their wives' surnames, what other gender-based distinctions in law might be unconstitutional? This ripple effect is one of the most important impacts of constitutional litigation: it prompts citizens and institutions to examine practices they previously took for granted.
Influence, Outcomes, and Effects
The ruling had both legal and social impacts. Legally, it harmonised South Africa's marriage registration processes, aligning them with constitutional principles of equality and dignity. Socially, it provoked a deeper reckoning with cultural norms and gender roles. The case forced South Africans to confront uncomfortable questions about how patriarchal assumptions continue to shape our institutions, even decades after the adoption of a progressive constitution.
The involvement of friends of the court, representing civil society voices, ensured that the case addressed broader structural issues, not just the applicants' individual circumstances. This inclusion reflected what Fung and Wright (2001, pp. 7-12) call empowered deliberative democracy, where institutional processes invite participation from diverse actors to improve public decision-making. By allowing civil society organisations to present arguments, the Court ensured that its decision would consider not just the narrow legal question before it, but the wider implications for gender justice and equality.
The judgment also exemplified public accountability in action. Accountability here was not limited to the Department of Home Affairs being held responsible for its discriminatory policy. It also extended to the broader public discourse that followed, which Bovens (2007, p. 450) defines as "answerability," where institutions justify their actions to citizens who then evaluate them.
The national debate that followed, as reflected in radio discussions, newspaper columns, and online forums like Timeslive (2025) demonstrated this second layer of accountability. On SAFM's The National Pulse (2025), for instance, traditional leaders were called upon to defend their opposition to the ruling, while the Department of Home Affairs faced public questioning about its discriminatory policy. Citizens debated the implications of the ruling, questioned long-held traditions, and reflected on what equality means in a multicultural democracy. Through this process, South Africans collectively participated in redefining the meaning of gender and identity in constitutional terms.
The case also had an empowering effect that is difficult to quantify but deeply important. However, it is worth noting that the applicants in this case possessed certain advantages that many South Africans do not: they were educated, had access to legal networks, and were comfortable navigating formal institutions. For many South Africans, particularly those in rural areas or from marginalised communities, the courts remain inaccessible both practically and psychologically. Constitutional litigation requires resources, knowledge, and a degree of social capital that not everyone possesses. This limitation means that while the judgment benefited all South Africans in principle, the pathway to achieving it was not equally available to all citizens.
Nevertheless, when citizens see people successfully challenging unjust laws through constitutional means, it can shift their understanding of their own potential power and agency. The applicants demonstrated that it is possible for ordinary people to hold institutions accountable, even if the path to doing so remains easier for some than for others. Their success sends a message that constitutional rights belong to everyone, while simultaneously highlighting the ongoing need to make legal processes more accessible to all South Africans, regardless of socioeconomic status.
Analysis and Lessons Learned
The case demonstrated that participation in democracy is not confined to elections or formal policy-making processes. It can also occur through constitutional litigation, civil society engagement, and public deliberation, all of which were evident in this case. This expansive understanding of participation is essential for a healthy democracy. If citizens believe that their only opportunity to participate is casting a vote every few years, they are likely to feel powerless and disengaged between elections. However, when citizens understand that they can participate through multiple channels such as courts, civil society organisations, public debates, and media engagement they are more likely to feel invested in democratic processes.
Research on the Constitutional Court's role has shown how strategic litigation can serve as a form of participatory democracy, allowing marginalised groups to claim rights and reshape public discourse (Gloppen, 2006). The Jordaan case fits within this broader pattern of what some scholars term "cause lawyering" or "social justice litigation," where legal action serves not just to resolve individual disputes but to advance broader social change.
Litigation can be a form of participatory democracy when it allows citizens to challenge and shape the law itself. In this case, the applicants' use of the courts represented what Arnstein (1969, pp. 217-220) calls partnership, a stage on her ladder of participation where citizens influence real decisions rather than merely being consulted. Arnstein's ladder is useful for understanding different levels of citizen power. At the bottom rungs are manipulation and therapy, where participation is merely symbolic. Higher up are informing and consultation, where citizens have a voice but no real power. At the top are partnership, delegated power, and citizen control, where citizens exercise genuine influence over decisions. The Jordaan case highlights partnership because the applicants were not simply consulted about a policy change; they actively challenged the existing policy and succeeded in getting it struck down.
The presence of friends of the court deepened this participation. Their submissions expanded the conversation from individual rights to societal values, ensuring the Court considered broader implications for gender justice. This mechanism of allowing third parties to present arguments in cases that affect them is an important feature of participatory justice. It recognises that court cases often have implications far beyond the immediate parties and that democratic legitimacy requires considering these broader impacts.
See Also
Civil society organisations play a vital mediating role between citizens and the state. Their involvement as friends of the court transformed the case from a private grievance into a collective dialogue about gender equality. Gloppen (2006, p. 15) describes this as "institutionalised participation," where courts become arenas for democratic engagement. Civil society organisations have resources, expertise, and legitimacy that individual citizens often lack. They can conduct research, mobilise public opinion, and present sophisticated legal arguments. When they use these capabilities to support citizens' constitutional claims, they amplify individual voices and help translate personal grievances into broader campaigns for social justice.
The Free State Society of Advocates, in this case, brought professional credibility and legal expertise to bear on arguments about gender equality. Their willingness to support the applicants signalled to the Court that the discrimination at issue was not merely a matter of personal preference but raised serious constitutional concerns that the legal profession recognised as important.Participation, Transformation, and Citizenship
The case reminds us that democracy grows through participation. What began as a personal struggle became a collective reexamining of equality. As Pateman (1970, pp. 42-45) argues, participation is transformative; it nurtures active citizenship and strengthens democratic culture. Pateman's argument is that participation does not just allow citizens to influence specific decisions; it actually changes the participants themselves. Through the process of engaging with public issues, deliberating with others, and taking action, citizens develop democratic capacities and commitments. They learn to see themselves as political actors rather than passive subjects. They develop skills in argumentation, coalition-building, and strategic thinking. They come to understand how institutions work and how to navigate them effectively.
By standing up to a discriminatory law, the applicants not only secured a personal right but also deepened South Africa's democratic practice. Their case illustrated that democracy is alive and is continuously reshaped through citizens' actions, court decisions, and public conversations. Democracy is not a fixed state that a country achieves and then maintains; it is an ongoing project that requires constant work. Cases like Jordaan and Others v Minister of Home Affairs and Another, therefore, contribute to this renewal by challenging citizens to reconsider assumptions, by forcing institutions to justify their practices, and by demonstrating that constitutional rights are not simply a notion but living commitments that must be constantly defended and, at times, reworked, but more importantly, reimagined
References
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