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2024
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[2024] ZAFSHC 286
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J.J and Others v Minister of Home Affairs and Another (3626/2024) [2024] ZAFSHC 286 (12 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
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Policy
FLYNOTES:
FAMILY – Marriage –
Choice of surname –
Department’s refusal to
allow male spouse to assume surname of female spouse –
Alleging Act is unconstitutional
– Act retained an archaic
and patriarchal default position that only women are entitled to
assume a different surname
– Limitation does not meet
rational connection and proportionality tests – Renders
limitation unjustifiable –
Applicants established
entitlement to relief –
Births and Deaths Registration Act
51 of 1992
,
ss 26(1)(a)
, (b) and (c).
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
CASE NO: 3626/2024
In
the matter between:
J[...]
J[...]
1
st
Applicant
H[...]
V[...] D[...] M[...]
2
nd
Applicant
JESS
DONNELLY-BORNMAN
3
rd
Applicant
ANDREAS
NICOLAAS BORNMAN
4
th
Applicant
And
THE
MINISTER OF HOME AFFAIRS
1
st
Respondent
THE
MINISTER OF JUSTICE AND COSTITUTIONAL
2
nd
Respondent
DEVELOPMENT
HEARD
ON:
29 August 2024
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
12
September 2024
Introduction
[1] The
applicant approached the court seeking an order in the following
terms:
1.
Declaring
Section 26(1)(a)
— (c) of the
Births and Deaths
Registration Act 51 of 1992
, to be unconstitutional to the extent
that it discriminates on the ground of gender, by failing to:
1.1
Afford a female person the right to have her spouse assume her
surname;
1.2
Afford a male person the right to assume the surname of the woman
with
whom
they conclude a marriage or after having assumed her surname, resume
a surname which he bore at any prior time;
1 .3
Allow for a married or divorced man or a widower to resume a surname
which he bore at any time;
1
.4 Allow for a man, whether married or divorced or a
widower, to add to the
surname
which he assumed after the marriage, any surname which he bore at any
prior time;
1
.5 Thereby subjecting any change to the surname of a
male person after marriage to the authorization of the Director
General in terms of Section
26(2)
of the
Births and Deaths Registration Act, Act
51 of 1992.
2.
Declaring Regulation 18(2)(a) of the
Regulations on the Registration of Births and Deaths, 2004 to be
unconstitutional to the effect
that it discriminates against male
persons by failing to provide for the change in the marital status of
a man.
3.
4.
Suspending the declaration of invalidity
in paragraphs 1 and 2 above for a period
of
24 months to enable the President and Cabinet, together with
Parliament to remedy the foregoing defects by either amending
existing
legislation, or passing new legislation within 24 months, in
order to ensure that male persons are afforded the right of
assumption
of another surname.
5.
6.
Pending the coming into force of
legislation or amendments to existing legislation, designed to afford
the right of assumption of
another surname as set out in
Section
26(1)
of the
Births and Deaths Registration Act, Act
51 of 1992:
4.1
It is declared that the provisions of Subsection 26(1) of the
Births
and Deaths Registration Act, Act
51 of 1992 shall not apply when:
4.1.1
A person after his or her marriage
assumes the surname of the man or wife with whom such person
concluded such marriage or after having assumed such surname, resumes
a surname which such person bore at any prior time;
4.1.2
A married or divorced woman or man or a widow or widower resumes a
surname which he or
she bore at any time; and
4.1.3
A person, whether married or divorced, or a widow or widower adds to
the surname which
he or she assumed after the marriage, any surname
which he or she bore at any prior time.
4.2
The First Respondent is ordered to within 20 days after the granting
of this order/immediately
effect the following changes in terms of
the aforesaid prayer 4.1:
4.2.1
To amend the surname of the First Applicant to
"J[...]",
42.2
To amend the surname of the Second Applicant to "J[...]";
4.2.3
To amend the surname of the First and Second Applicants' child to
"J[...]",
4.24
To amend the surname of the Fourth Applicant to "Donnelly-Bornman".
7.
Pending the coming into force of
regulations, or amendments to existing regulations, designed to
afford the right of assumption
of another surname as set out in
Section 26(1)
of the Births and Deaths Registration Act, Act 51 of
1992 it is declared that the reasons referred to in
section 26(2)
of
the
Births and Deaths Registration Act, Act
51 of 1992 must relate
to, inter alia, a change in the marital status of a person.
8.
That the Order granted in favour of the
applicants shall be referred to the Constitutional Court in terms of
Section 172(2)(a) of
the Constitution of the Republic of South Africa
for confirmation of constitutional validity
9.
An order for costs, including the costs
of two counsel to the extent of their employment;
8.
Further and/or alternative relief.
[2]
The applicants duly caused a notice in terms of Uniform Rule 16A to
be placed on the notice board and the application
was served on the
respondents. The respondents did not oppose the application. I gave
the following order in the unopposed motion:
“
1.
The Application is postponed to the
29
th
day
of
August
2024
to
the opposed motion roll for arguments.
2.
The Court appointed counsel, nominated by the Free State Society of
Advocates, shall file heads of argument
on or before
Wednesday, 21
August 2024
at
12h00.
3.
The Applicants shall file supplementary heads of argument if so
advised, on or before
Friday, 23 August 2024
at
11h00.
4.
Costs of the postponement shall be costs in the cause.
[3] The
application was argued on 29 August 2024, and I reserved judgment. I
am grateful to the helpful contributions
of the applicants and the
amicus curiae.
The parties
[4] The
first applicant is J[...] J[...], a major female legal practitioner
and practising attorney of 3 Paddy
Goodrick Street, Pentagon Park,
Bloemfontein.
[5] The
second applicant is H[...] v[...] d[...] M[...], a major male senior
corporate manager resident at 3 Paddy
Goodrick Street, Pentagon Park,
Bloemfontein. Both the first and second applicants act in their
representative capacities as guardians
and biological parents of
L[...] v[...] d[...] M[...], born on 1[…] M[…] 2023.
[6]
The third applicant is
Jess
Donnelly-Bornman, a major practising advocate and member of the Free
State Society of Advocates with chambers at the Advocates’
Chambers, 3 Zola Budd Street, Bloemfontein.
[7] The
fourth applicant is Andreas Nicolaas Bornman, a major legal
practitioner practising in the name and style
of Donnelly-Bornman Law
Inc. with offices at 129 President Reitz Avenue, Westdene,
Bloemfontein.
[8] The
first respondent is the Minister of Home Affairs in his
representative capacity as such with offices situated
at FSI
Building, First Floor, Arcadia Street, Pretoria, Gauteng c/o the
State Attorney, Fedsure Building, 11 Floor, 49 Charlotte
Maxheke
Street, Bloemfontein CBD, Bloemfontein.
[9] The
second respondent is the Minister of Justice and Correctional
Services in his representative capacity
as such, with offices
situated at SALU Building, 28
th
Floor, 316 Thabo Sehume
Street, Pretoria, Gauteng, c/o the State Attorney, Fedsure Building,
11 Floor, 49 Charlotte Maxheke Street,
Bloemfontein CBD,
Bloemfontein.
Background: 1
st
and 2
nd
Applicants
[10] The first and
second applicants were married at the branch of the Department of
Home Affairs, (“the DHA”),
at 10988 Corner George Lubbe
in Moshoeshoe Streets, Rocklands, Bloemfontein on 15 July 2021. After
their marriage was solemnised,
and in the process of its
registration, the second applicant was asked by the DHA official
whether she was assuming the second
applicant’s surname or
retaining hers. When both applicants informed the official that the
second applicant would assume
the first applicant’s surname, he
replied that the system did not allow that. On further inquiry, a
second staff member in
the department confirmed that the applicant’s
request could not be accommodated. The applicants elected to retain
their different
surnames. Their daughter carries a surname they did
not intend to be their family name.
[11] The applicants
had always intended that the second applicant would assume the first
applicant’s surname upon marriage.
J[…] was the first
applicant’s biological parents' surname and symbolized her
connection to them. They passed away
when she was four years old. She
has no intention of ever changing her surname, and she explained this
to the second applicant
at a very early stage of their relationship,
around 2014.
[12] The second
applicant pledged his unwavering support for her stance and, in turn,
expressed his wish to assume her surname
upon marriage so that they
could become the J[...] family and raise their children with that
surname.
Background 3
rd
and 4
th
Applicants
[13] The third
applicant is an only child whose maiden surname is important to her.
Before their marriage, she informed the
fourth applicant that she
preferred to keep her maiden surname and would rather hyphenate the
fourth applicant’s surname
with her own. Both did not wish to
have different surnames from each other and their children. They
preferred to combine their
surnames to reflect their familial unit.
[14] They were married on
02 April 2022 at Knysna. On completing their marriage certificate,
they realized that though a provision
was made for the female spouse
to change her surname, no such provision existed for the male spouse.
The third applicant changed
her surname to that of their new familial
unit (“Donnely-Bornman”) when she completed the marriage
certificate. They
intended to apply to the DHA to amend the fourth
applicant’s surname as soon as they could.
[15] In July 2022,
they visited the DHA offices at Botshabelo. The third applicant
wanted a new identity document and passport
which would reflect her
new surname. The fourth applicant wanted to change his surname to
that of the applicant and their familial
unit, (“Donnely-Bornman”).
The DHA officials informed them that it was not possible for the
fourth applicant to change
his surname. When they were pressed for an
answer by the applicants, none was forthcoming. The same position
obtained in their
second attempt at the same offices in September
2022.
[16] In October
2022, they visited the DHA offices in George but were informed that
the
Births and Deaths Registration Act, 51 of 1992
, did not permit
the type of amendment sought. The third applicant was provided with
an email address of the Director-General’s
office to make
inquiries and seek guidance. She sent an email on 31 October 2022 but
has received no response.
The Unlawful amendment
of the 1
st
applicant’s surname
[17] On/or about 1
November 2021, the first applicant became aware from a portal related
to the registration for National
Elections that her surname was
unilaterally amended by the DHA to the second applicant’s
surname, to wit “V[…]
d[…] M[…].”
She had not applied for the change of her surname and had no
intention to do so. This amendment
affected her FICA and credit
records with ABSA Bank. Her FICA documentation was non-compliant and
detrimentally affected her home
loan status. Though ABSA Bank has
since resolved the issue, it resulted in unnecessary and unavoidable
administrative delays.
The failure to amend
the 2
nd
and 4
th
applicant’s surnames
[18] The applicants
believe that the failure of the Department of Home Affairs to allow
the second applicant to assume the
first applicant’s surname
and the fourth applicant to assume the third applicant’s
surname is the result of the provisions
of the
Births and Deaths
Registration Act 51 of 1992
and the Regulations on the Registration
of Births and Deaths, 2014.
The Act and its
Regulations
[19]
Section 26(1)
of the
Births and Deaths Registration Act 51 of 1992
provides as
follows:
(1)
Subject to the provisions of this Act or any other law, no
person shall assume or describe himself or herself by or pass
under
any surname other than that under which he or she has been included
in the population register, unless the Director-General
has
authorized him or her to assume that other surname: Provided that
this subsection shall not apply when-
(a)
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;
(b)
a
married or divorced woman or a widow resumes a surname which she bore
at any prior time; and
(c)
a
woman, whether married or divorced, or a widow, adds to the surname
which she assumed after the marriage any surname which she
bore at
any prior time.
[20]
Regulation 18 of the Regulations on the Registration of Births and
Deaths, 2014, made by the first respondent in
terms of section 32 of
the Act, deals with the assumption of another surname. Regulation
18(2)(a) provides that the reasons referred
to in section 26 (2) of
the Act must relate to a change in the marital status of a woman.
The
Parties’ Contentions
[21]
The applicants contend that the Act and the Regulations perpetuate
gender norms set by a patriarchal society that entrenches
gender
inequality and differentiates based on sex and gender. In contrast,
section 9(2) of the Constitution stipulates that the
right to
equality includes the full and equal enjoyment of all rights and
freedoms. Section 9(3) provides explicitly that the State
may not
unfairly discriminate directly or indirectly against anyone based on,
among other things, gender or marital status. Relying
on the
President
of the Republic of South Africa and another v Hugo,
[1]
the
applicants contended that, at the heart of the prohibition of unfair
discrimination, lies a recognition that the purpose of
our new
constitutional and democratic order is the establishment of a society
in which all human beings will be accorded equal
dignity and respect
regardless of their membership of particular groups.
[22]
Despite the abolition of the
marital power and the advent of the
new
Constitutional order of equality regardless of sex, gender or marital
status, the applicants argued that the Act has retained
an archaic
and patriarchal default position that only women are entitled, as of
right, to assume a different surname. Any person
who does not fall
within the ambit of section 26(1) must, in terms of section 26(2) of
the Act, apply to the Director-General for
consent to assume a
different surname and, in terms of section 26(2), be satisfied that
suitable and sufficient reason exists for
such a change.
Therefore, according to the Act and the regulations, only men and not
women may assume a different surname upon marriage.
[23]
I was also referred to the
dictum
in
Wile
v MEC, Department of Home Affairs, Gauteng,
[2]
where
Bozalek J opined that to the extent that regulation 18 seeks to
establish a closed list of reasons for assuming another surname,
it
is
ultra
vires
in
that it misconceives the meaning and scope of section 26(2) of the
Act.
[3]
The applicants submitted
that the provisions of section 26(2) and Regulation 18 will be
constitutionally invalid if they do not
pass the “equality
test” formulated in
Harksen
v Lane NO and Others.
[4]
[24]
The
Amicus
supported the arguments and submissions advanced by
the Applicants
and
contended that if
the
court granted the relief sought, the order should be referred to the
Constitutional Court for confirmation under section 172(2)(a)
of the
Constitution.
The
Amicus
took the inquiry further and submitted that the
limitation was not justifiable
under
the limitation clause for the following reasons:
24.1.
It perpetuates gender inequality and robs individuals of their
identity and autonomy. Similarly, by restricting a man's
right to
assume their wife's surname, the law violates the principles of
gender equality and perpetuates harmful stereotypes, as
men are
denied a choice that is available to women,
24.2
It fails to recognise modern societal values like gender equality and
fluidity in identity choices and reinforces
the norm that men must
conform
to traditional masculine norms;
24.3
It is intrusive and serves no compelling state interest in that it
requires
government
involvement in a profoundly personal decision, violating
Individual
privacy and autonomy. There is no compelling interest in
regulating
surname changes, and existing legal processes can be
amended
to manage these changes without the intervention of the
DirectorGeneral,
and the bureaucracy that goes with it.
24.4
Finally, these provisions fail to recognise modern societal
values,including
gender equality, fluidity in identity choices, and the rejection of
rigid gender roles. Updating the law to reflect these
values and
promote a more inclusive and equitable society is essential.
24.5
In the premises, the limitation does not meet the 'rational
connection' and 'proportionality' tests, rendering
the limitation
unjustifiable.
[25]
The
amicus
concluded that Section 26(1)(a) -(c) and Regulation
18(2)(a) should be held to be inconsistent with the Constitution
because it
discriminates based on gender.
[26]
Having considered the above, I am satisfied that the applicants have
established their entitlement to the relief sought.
[27]
I, therefore, make the following order:
Order:
1.
Prayers 1-6 of the notice of motion are granted.
2.
Costs to be paid on an unopposed basis, including the costs of two
counsel on scale C to the extent of
their employment.
MHLAMBI, J
On
behalf of Plaintiff:
Adv.
N. Snellenburg SC,
Instructed
by:
Stander
& Associates
29
President Steyn Avenue
Westdene
Bloemfontein
On
behalf of the Amicus:
Adv.
S Grobler SC
Adv.
K Motselebane
Instructed
by:
Free
State Bar of Advocates
3
Zola Budd Street
Bloemfontein
[1]
1997(4)
SA 1 CC.
[2]
[2016] 3 All SA 945
(WCC) paras 46-49.
[3]
Ramolebo
v Minister of Home Affairs and Another [2019] JOL 45828 (FB).
[4]
1998(1) SA 300 (CC),
para 54.