Stalled at the counter: bureaucratic patriarchy and the Jordaan judgment

Abstract

The Constitutional Court’s judgment in Jordaan v Minister of Home Affairs (2025) ostensibly ended state-sanctioned patriarchy in South African naming law by declaring section 26(1) of the Births and Deaths Registration Act 51 of 1992 unconstitutional and extending the automatic right to assume a surname to men. However, this article contends the judgment risks remaining a ‘paper victory’. Drawing on street-level bureaucracy theory and transformative constitutionalism, this paper reveals a profound ‘implementation gap’ at the Department of Home Affairs. I argue that the 1992 Act operates as a vessel of ‘bureaucratic patriarchy’, enforcing a rigid ‘Western nuclear norm’ that clashes with the fluid, multigenerational naming conventions protected by the Recognition of Customary Marriages Act (1998). This ‘legislative cannibalism’ forces African customary identities into a colonial-era digital template within the National Population Register. Furthermore, I challenge the Court’s ‘remedial minimalism’. Reading gender-neutral terms into an apartheid-era statute cannot cure the structural governance dysfunctions maintained by moral gatekeeping at the service counter. Substantive equality requires enacting a comprehensive Personal Naming Practices Act to decolonise civil registration and align it with the Constitution’s pluralistic mandate.