Offensive Speech Is Still Protected Speech

Without free expression, other rights cannot meaningfully exist

Photo by Gama. Films on Unsplash

In his speech at the Free Market Foundation’s relaunch of the Free Speech Union South Africa (FSU-SA) as an institutional initiative, the CEO of the FMF and a Director of the FSU-SA, David Ansara, correctly noted that, aside from the incitement of violence, certain forms of expression, however offensive, should enjoy legal protection and should not be unjustifiably restricted.

Free expression requires tolerance for a diversity of perspectives. And when intolerance is on the rise – as has been the case in South Africa for some time – the space for free expression begins to narrow, with certain individuals being targeted, criminalised, and professionally destroyed for exercising their right to speak.

One arena in which intolerance has become particularly prevalent in South African society is the university. This intolerance can be attributed, in large part, to the ideology of Fallism, which has gripped universities since the emergence of the Rhodes Must Fall and Fees Must Fall student-led protest movements and facilitated their capture by actors more interested in advancing ideological rather than educational imperatives.

Arthur Vamva’s case

Over the years, cases of students being subjected to disciplinary action for expressing their views have become increasingly common. One such case is that of Arthur Vamva, a former student at Rhodes University who was expelled for four years in December 2022 after an internal disciplinary board found that comments he had made on social media about homosexuality contravened the university’s student disciplinary code.

At the time, Vamva was a candidate for the SRC presidency and became the target of his political opponents, who brought up a past Facebook post in which he, among other things, stated that “Homosexuality is evil.”

An online petition that garnered more than a thousand signatures was soon launched, calling for Vamva to be disqualified from the election. Before the final election results were announced, the university nullified the vote and initiated disciplinary action against him. That action would eventually culminate not only in his four-year expulsion but also in the endorsement of his academic transcript, preventing him from continuing his studies elsewhere.

What followed was a protracted legal battle over free expression that continues to this day.

At the time of writing, Vamva is awaiting the outcome of an application he brought before the Eastern Cape High Court on the 20^th of November 2025, challenging the university’s decision to expel him. He argues that the four-year expulsion was grossly disproportionate, that the disciplinary process was procedurally unfair, that some of the statements relied upon as evidence were taken from private conversations, and that his rights to freedom of expression and freedom of religion were violated.

Whatever the outcome, Vamva has indicated that the case will likely proceed through South Africa’s higher courts, including the Supreme Court of Appeal and, potentially, the Constitutional Court.

Why this case matters

This article’s interest in Vamva’s case is not in the content of his remarks or whether they were right or wrong. Rather, it is in the principle of free expression – however offensive it may be in some instances – and whether it should be protected in universities, which should ideally serve as open platforms for the free exchange of ideas rather than institutions that professionally destroy individuals for exercising their right to speak.

Offensive speech is, by its nature, offensive, but offensiveness alone does not place it outside the protection of the law. The proper test is whether speech falls outside that protection by amounting to the incitement of violence. In Vamva’s case, while his remarks were regarded by some as offensive, they did not amount to the incitement of violence against any individual or group.

For this reason, Rhodes University’s decision to expel Vamva was grossly disproportionate and constituted a grave violation of his right to free expression. The fact that a student who should be a graduate today has effectively had four years of his academic life taken away from him is an egregious injustice. It is symbolic of the intolerance that has become all too common in South African universities.

Defending free expression

This intolerance poses a threat to free expression and must be challenged in defence of the freedom that forms the bedrock of a free society.

Without free expression, other rights cannot meaningfully exist. It is a foundational right.

This is what makes an initiative like the FSU-SA so important. Its work will be narrowly focused on upholding and defending free expression against threats to it, while recognising that only forms of expression that fall outside the protection of the law should be subject to legal sanction.

Ayanda Sakhile Zulu holds a BSocSci in Political Studies from the University of Pretoria and is a Policy Officer at the Free Market Foundation.