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be hurtful;

be harmful or to incite harm;

promote or propagate hatred.

(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.

Prohibition of harassment

11. No person may subject any person to harassment.

Prohibition of dissemination and publication of information that unfairly discriminates

12. No person may—

disseminate or broadcast any information;

publish or display any advertisement or notice,

that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: provided that bona fide engagement in artistic creativity, academic and scientific inquiry. fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

CHAPTER 3

BURDEN OF PROOF AND DETERMINATION OF FAIRNESS OR UNFAIRNESS

Burden of proof

13. (1) If the complainant makes out a prima facie case of discrimination—

the respondent must prove, on the facts before the court. that the discrimination did not take place as alleged; or

the respondent must prove that the conduct is not based on one or more of the prohibited grounds.

(2) If the discrimination did take place—

on a ground in paragraph (a) of the definition of “prohibited grounds”, then it is unfair, unless the respondent proves that the discrimination is fair;

on a ground in paragraph (b) of the definition of “prohibited grounds”, then it is unfair—

if one or more of the conditions set out in paragraph (b) of the definition of “prohibited grounds” is established; and

unless the respondent proves that the discrimination is fair.

Determination of fairness or unfairness

14. (1) It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.

(2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account:

The context;

the factors referred to in subsection (3);

whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.

(3) The factors referred to in subsection (2)(b) include the following:

Whether the discrimination impairs or is likely to impair human dignity;

the impact or likely impact of the discrimination on the complainant;

the position of the complainant in society and whether he or she suffers from