ConCourt to hear application that seeks to confirm invalidity of some provisions of Births and Deaths Registration Act

JOHANNESBURG - The Constitutional Court is expected to hear an application on Tuesday that seeks to confirm a declaratory order by the Free State High Court invalidating some provisions of the Births and Deaths Registration Act. 

The court found that the legislation was discriminatory based on gender insofar as it does not allow husbands to assume the surnames of their wives. 

The ministers of Home Affairs and Justice and Constitutional Development do not intend to oppose the application before the apex court.

Jana Jordaan became an orphan at just four years old, since then she has had a deep affinity for her surname, which she felt was the only link she still had to her parents and vowed to never change it.

However, when she married Henry van der Merwe, who had stated his intention to adopt his wife’s surname in 2021, the newlyweds were told that the law does not allow for such a practice. 

The couple has since had a daughter who has also assumed her father’s surname despite the family’s intentions to have Jordaan’s surname as their family name. 

A similar fate befell Jess Donnelly-Bornman and Andreas Bornman.

Donnelly-Bornman was an only child and intended to keep her surname despite the change in her marital status. A wish that could not be granted due to the Births and Deaths Registration Act.  

The couple's last year approached the courts, arguing that the piece of legislation was discriminatory based on gender. 

They will argue the same before the constitutional court on Tuesday.