J.J and Others v Minister of Home Affairs and Another (3626/2024) [2024] ZAFSHC 286 (12 September 2024)

J.J and Others v Minister of Home Affairs and Another (3626/2024) [2024] ZAFSHC 286 (12 September 2024)

The court found that section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 and Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014, discriminate on the basis of gender by failing to afford male spouses the right to assume the surname of their female spouse upon...

Source-derived case information.

Citation
[2024] ZAFSHC 286
Parties
Applicant: J[...] J[...]; Applicant: H[...] v[...] d[...] M[...]; Applicant: Jess Donnelly-Bornman; Applicant: Andreas Nicolaas Bornman; Respondent: Minister of Home Affairs; Respondent: Minister of Justice and Constitutional Development
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 September 2024
Case Number
3626/2024
Procedural Posture
Constitutional Application / Judgment After Opposed Motion
Outcome
Application granted. Sections 26(1)(a)-(c) of the Births and Deaths Registration Act and Regulation 18(2)(a) declared unconstitutional and invalid, with suspension of invalidity for 24 months. Orders granted as prayed in prayers 1-6 of the notice of motion. Costs awarded on an unopposed basis, including costs of two...
Judges
Mhlambi
Legal Topics
Gender Discrimination, Surname Change, Births and Deaths Registration Act, Marital Status, Equality Clause
Constitutional Law Family and Children Gender Discrimination Surname Change Births and Deaths Registration Act Marital Status Equality Clause

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Parties

J[...] J[...]

Applicant

H[...] v[...] d[...] M[...]

Applicant

Jess Donnelly-Bornman

Applicant

Andreas Nicolaas Bornman

Applicant

Minister of Home Affairs

Respondent

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Constitutional Application / Judgment After Opposed Motion

Legal Issues

  1. 1 Whether section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 and Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014, are unconstitutional for discriminating on the basis of gender.
  2. 2 Whether the statutory and regulatory framework unjustifiably limits the right of male spouses to assume the surname of their female spouse upon marriage.
  3. 3 Whether the limitation imposed by the Act and Regulations meets the rational connection and proportionality tests under the Constitution.

Ratio Decidendi

The court found that section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 and Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014, discriminate on the basis of gender by failing to afford male spouses the right to assume the surname of their female spouse upon marriage. This statutory and regulatory framework entrenches patriarchal norms and violates the constitutional right to equality and dignity. The limitation imposed does not meet the rational connection and proportionality tests and is not justifiable under the limitation clause. The applicants established their entitlement to relief, and the impugned provisions were declared...

Court Disposition

Application granted. Sections 26(1)(a)-(c) of the Births and Deaths Registration Act and Regulation 18(2)(a) declared unconstitutional and invalid, with suspension of invalidity for 24 months. Orders granted as prayed in prayers 1-6 of the notice of motion. Costs awarded on an unopposed basis, including costs of two...

Orders

  • Section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 declared unconstitutional to the extent that it discriminates on the ground of gender.
  • Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths, 2014 declared unconstitutional for discriminating against male persons.