Overcrowding in prisons: input from the Judicial Inspectorate for Correctional Services; Justice, Crime Prevention and Security Cluster and Legal Aid South Africa

Correctional Services

26 October 2010
Chairperson: Mr V Smith (ANC)
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Meeting Summary

Representatives from the Police Portfolio Committee; the Justice, Crime Prevention and Security (JCPS) cluster; the Judicial Inspectorate for Correctional Services (JICS); the National Prosecuting Authority; the Justice and Constitutional Development Department and an academic professor met to find collective solutions to the problem of overcrowding in prisons.

The Inspecting Judge of the Judicial Inspectorate said in his briefing that Awaiting Trial Detainees were held in custody while the case against them was investigated. They were locked up for 23 hours per day, could not be compelled to work, and could not study. Although the position of women and children had improved with regard to overcrowded facilities, the ATDs presented an ethical dilemma. The Judge was severely critical of minimum sentence legislation, which filled prisons with long term sentence inmates, and contributed to overcrowding. He emphasised the urgent need for alternatives to custodial sentencing, such as community service. ATDs were sometimes held for three years, only to be told that the case against them had been dropped. Many ATDs were in jail because they could not afford bail. Parole could reduce prison populations.

In discussion it was mentioned that Heads of Centre often lacked the skill to appeal to magistrates on behalf of ATDs. Impediments to non-custodial sentencing were discussed. A member of the Police Portfolio Committee had reservations about relaxing bail. There were questions and comments about building new prisons as a solution. It was noted that the police tended to arrest in order to investigate which swelled the ranks of ATDs, plus the media and the community placed pressure on police to arrest. It emerged that ATDs were being held for months in police holding cells. The Inspecting Judge agreed that the police tended to measure success by arrest, whereas successful conviction was the real criterion.

The briefing by the JCPS cluster said the Criminal Justice Cluster had improved the capacity of courts to deal with cases and backlogs. The undeniable reality was that serious crime was rife. Yet arrest and successful conviction created overcrowding problems for the DCS. Plea bargaining and alternative sentencing had to be considered. Minimum sentence legislation was there to send the message that crime was taken seriously. Minimum sentencing had to be debated at the level of Parliament. There was a lack of social workers to divert people. The DCS budget did not provide for alternative sentences. Admission of guilt fines were an alternative to custodial sentencing, plea bargaining should be utilised more. Police could use mechanisms such as the subpoena, instead of quick arrests. Detectives and prosecutors needed more training. ATDs had to be fast-tracked.

Legal Aid SA stated that it represented those who could not pay for legal representation. It worked with other stakeholders such as NICRO, and tried to fit into their programmes. Legal Aid SA entered centres to see who needed lawyers, and informed ATDs of their right to legal representation. Legal Aid SA was committed to the diversion of children from prisons. Magistrates were reluctant to consider non-custodial sentencing. Legal Aid SA practitioners were also trained for possible diversion of adults. They were also trained in bail applications. Legal Aid SA supported the view that minimum sentences were not effective in reducing crime levels. Plea bargaining could be more wisely utilised.

In discussion, Legal Aid SA was asked what it was doing to market itself. An ANC member spoke quite harshly about its lack of ability to win cases. There was concern that the front end of the JCPS cluster had improved, whilst the back end had been neglected. The DCS had to deal with the effects of systemic flaws. The Committee claimed Legal Aid SA lawyers were overburdened with cases, and too easily agreed with the magistrate. The attitudes of magistrates came under discussion, with reports of delays and procrastination. The professor commented that length of sentences were too long for capacity. There had to be an undertaking from the police to arrest essentially. A DA member noted that the police measured success by arrests, whereas in fact police success was the absence of crime. He also called for synergy between the social- and the Justice cluster. An ANC member urged that the root socio-economic causes of crime be addressed. A Police Services Portfolio Committee member argued that criminals deprived victims of rights, which merited minimum sentences. The NICRO spokesperson noted that crime was a symptom of a deeper problem. Sentences without sentence plans achieved nothing. There had to be engagement with communities and families.


Meeting report

Introduction by Chairperson
The Chairperson welcomed members of the Police Services Portfolio Committee: delegates from the Justice cluster; the Inspecting Judge and his team; delegates from the National Prosecuting Authority and Justice and Constitutional Development, and an academic professor. He said that people had been brought together to seek collective solutions.

The Chairperson provided a context to the meeting. He said that 18 months before, at the start of its term, the Corrections Portfolio Committee had identified six pillars that supported the appproach it would take during its term. It was resolved that the Department of Correctional Services (DCS) had to move from serial qualified audits to a clean audit. Infrastructure challenges in the DCS had to be dealt with. It was decided that parole and reintegration  would be faced head on as a challenge. Inmate privileges would be challenged. For too long, imprisonment had been a holiday for many. Inmates had to work. Television could not be costantly on. The budget had to be aligned with the White Paper and the Correctional Services Act. There had to be a move from incarceration to rehabilitation. Overcrowding had to be addressed.

The Chairperson continued that as regards overcrowding, the DCS was at the tail end of a process. When an individual reached DCS custody, many processes had taken place, commencing with arrest and investigation. The problem of overcrowding was not so much with those already sentenced, as it was with awaiting Trial Detainees (ATDs). Police were not doing a proper job upfront. The Judiciary sometimes fared better. The fact was that there were many people in jail, only because they could not afford bail. The point was taken that such people were a flight risk, but they could do better. Alternatives had to be sought. People emerged from jail after 10 years as hardened criminals.

The Chairperson told those who were to make presentations, excepting the Inspecting Judge, not to bore everyone with statistics, but to tell what they were doing about the problem, and challenges experienced, so that everyone could be held accountable to commitments expressed.

Briefing by the Judicial Inspectorate for Correctional Services
Judge Deon van Zyl, Inspecting Judge, praised the Correctional Services Portfolio Committee for the innovative approach adopted in getting main role players from beginning to end, to deliberate together.

The Judge noted that the Judiciary and the National Prosecuting Authority were involved with ATDs. There were 249 prisons in South Africa, with approximately 160000 offenders held there. Overcrowding fluctuated from centre to centre: 19 centres were critically overcrowded, some by as much as 247%, as at King William’s Town. A centre such as Barkley West, in contrast, was only 22% utilised. Still South Africa had the highest incarceration rate in Africa. The Constitution stipulated that offenders had to be kept under humane conditions, but some centres were an affront to human dignity. The number of women and children in prisons had declined.

ATDs were held according to the principle that one is innocent until proved guilty. But they were locked up 23 hours per day, without uniforms, biding their time. They could not work. It had become an ethical dilemma. ATD numbers peaked in the months around the festive season, from November to February, because their cases could not be heard and were postponed. He asked why Justice could not institute special hearings over that period. There had been a decline in sentencing in general, but an increase in long term sentences handed down. Minimum sentence legislation was responsible. To him such legislation was frankly an evil, as it curbed the discretion of judicial officers.

The Judge said that prison capacity had been calculated in terms of whole day detention, and came to an average of 3.5 square metres per inmate. Prisoners could do with less than that, if they were working outside. Some new centres worked on the basis of 2.5 square metres. He deemed it essential that inmates be taken out to get exercise and fresh air through work. He was convinced that it would be better to reduce inmates through alternatives to direct imprisonment, than to build new centres. It had to be remembered that arrest was a breach of freedom. It was obviously warranted for crimes such as murder, but many were arrested for being in the wrong place at the wrong time. Trivial offences did not deserve custodial sentences. He could not agree with sentencing someone who had stolen bread for the second time, to a prison term. Section 57 of the Criminal Procedures Act provided for plea bargaining and the admission of guilt. That was linked to the possibility of non-custodial sentencing through alternatives such as community service.

The Judge said that he had sympathy with prosecutors and magistrates who did not have time to consult offender files. But people could be appointed to sift through files. Matters were simply being postponed. There were ATDs who had been held in custody for three years, only to be told that there was not sufficient evidence to convict them. The Judge felt that they should actually be suing the state. Judges and magistrates had to be trained to think of alternatives to custodial sentencing. Over 9000 ATDs were being kept at R200 per day each. He was surprised that there was not more litigation.

Discussion
The Chairperson opined that there had been too many talkshops around service delivery. People had to start saying what they were doing, so that they could be held to it. Regardless of statistics on bedspace, the fact was that people were sleeping like sardines, in centres like Johannesburg and Pollsmoor. Building out of overcrowding was a non-issue. Other solutions had to be sought. 

Judge van Zyl responded that conferences were often a waste of time and resources, but there had been some useful workshops. He found it helpful to look at what was happening in the rest of the world. His own approach was to look to the rest of Africa first, and he had found that educational. He agreed that calculated bedspace could become a play with numbers. The point was to get people out of cells, also ATDs. If ATDs were at all willing to do things such as voluntary garden work, that had to be possible.

Ms Hlengiwe Mkhize, Deputy Minister of Correctional Services, said that she was concerned about the quality of Heads of Centres. Visits to correctional centres revealed a lack of qualifications and skills among them. They had problems with matters such as appealing to magistrates. They were supposed to write to magistrates, but the procedure was cumbersome. On the matter of the ATDs, there were unwarranted charges and detentions, which was a human rights issue. People were held in centres while police failed to obtain evidence to convict. She asked if there was sufficient investigative capacity. There had to be the ability to build a strong case. Ongoing training was needed.

The Judge agreed that procedures such as appeals to magistrates were laborious and complex.

Mr J Selfe (DA) said that in contrast to ATDs whose cases were delayed, there was another category of serious offenders who changed courts and legal counsel and were intent to drag things out on purpose. With regard to non-custodial sentences, it seemed that judges were not aware of their options. He asked what other impediments there were. He thought that there was merit in the idea that the onus be reversed for young, first time offenders, to say that non-custodial sentences should be a first option, unless there were factors arguing against it.

The Judge agreed that there could be no sympathy for those who dragged out legal proceedings. But they were a minority. Non-custodial sentences were the jurisdiction of judicial officials. A restorative approach to the victim could go along with correctional service for offenders, but there were not always structures in place for that. Infrastructure had to be built for that.

Mr M George, COPE member of the Police Services Portfolio Committee, asked how the Criminal Procedures Act could be simplified. He suggested that inmates be redistributed from critically overcrowded centres to underutilised ones. He said that relaxed bail would have consequences. There were cash heist offenders who had received bail they were not supposed to get, who had gone out and killed people. It would not do to go to the other extreme and create the public impression that it was not a problem to commit crime, and that crime paid.

The Judge replied that only Parliament could amend the Criminal Procedures Act. A case for its amendment could be presented to the Justice Department. The Act had to be made simpler for the Police and DCS. The problem was that the police measured success by arrests, and the Prosecuting Authority wanted convictions. An arrest was in fact only a success if it resulted in a conviction.

The Judge agreed that there were some who had been granted bail who should not have been allowed out. Judicial officers had to have the facts of a case before them. Bail appeals could be difficult. He himself had to refuse Najwa Petersen’s bail request.

Ms W Ngwenya (ANC) said that she agreed with the Inspecting Judge. She noted that oversight visits had shown that conditions for women and children in prisons was poor. Centres had been designed for men. She commented that ATDs were also a challenge to the budget. The budget only catered for sentenced inmates. ATDs only ate and slept and watched TV. They had to get uniforms. They were dressed in civilian clothes and that could aid escape.

The Judge agreed that prisons had been designed for men. He thanked the Deputy Minister of Correctional Services for helping to get women out of prison. Existing prisons could be restructured to be made amenable to women.

Mr L Max (DA) said that he appreciated the briefing. He agreed that building new jails was not the solution. The reality was a growing offender base, and recidivism. Presiding officers were under pressure to keep people inside. When he was MEC of Police, he found a management style that prompted station commanders to arrest in order to investigate. Arrests were good for police records. The SAPS did not apply the Criminal Procedures Act. If police did not arrest, they were viewed as corrupt. That contributed to ATDs languishing in jail. There had been good progress in the Western Cape in turning all that around. Police were not soft on crime, but discretion could be used.

The Judge replied that the growing offender base was due to minimum sentence legislation. The Department of Justice could look at minimum sentence requirements. ATDs were indeed learning about crime through contact with sentenced offenders. He agreed that police management style could lead to the manipulation of statistics, and “arrest to investigate”. When he presided over the Inge Lotz case, police had manipulated evidence. In that case, there had also been people doing jobs for which they were not properly qualified. The fingerprint expert had only had six months experience, and did a poor job. There had to be work on human resources.

Ms Cindy Chikunga, Chairperson of the Police Portfolio Committee, said the overcrowding problem was complex. There was not only overcrowding in prisons, but in police holding cells also. People were in prison for petty crimes. One had to decided how serious a crime the theft of a cellphone was, for instance. She agreed with Mr George about bail, a Mitchells Plain drug dealer had been granted bail 47 times without ever being taken into custody. There was pressure from communities to act against crime, and pressure on police to arrest. Media sensationalism contributed to that. Serious and violent crime was rife. Victims of serious crime complained their cases were not being attended to. There were people who killed others without being charged. ATDs were the responsibility of the DCS. Others did not feel the burden.

The Judge responded that communities would not take justice into their own hands, if justice, fairness and reasonableness were present and accepted by all. With regard to petty crime, he said that everyone had the right to lay a charge, and that it not only had to do with loss, but also with things like the violation of privacy experienced through break-ins. There were times when the police had to act, and did not do so. Police would decide that a domestic incident was a family matter, but that did not change the fact that an assault had taken place.

Ms Kohler-Barnard, DA member of Police Portfolio Committee, noted that ATDs were being kept in police cells for months, while prisons were unable to take them in. Police cells were inadequate. She commented that some children were up for serious crimes.

The Judge replied that he had helped obtain the release of a 14 year old girl from prison who was, in his opinion, mentally defective. Yet there were children who had committed heinous crimes. Ideally though, prisons were not for people under 18 years of age. The Judicial Inspectorate did not have jurisdiction over police cells. Holding ATDs in police cells should not be happening at all. The Act stipulated that an offender should not be kept in police cells for longer than 48 hours. Magistrates were in fact not allowed to send people back to police cells from the courts. The Heads of Centres had to accept people.

The Chairperson remarked that officials could not provide solutions. He urged members to come up with solutions in the next round.

Mr Max commented that ATDs were also deprived of education.

The Judge agreed that ATDs were deprived of both freedom and education. There had to be planning for them. They could not be compelled to work like sentenced offenders. They could not wear uniforms, as Ms Ngwenya had suggested.

Justice, Crime Prevention and Security (JCPS) cluster briefing
Mr Pieter Du Rand, Deputy Director General: Court Services, Department of Justice and Constitutional Development, said that the Justice cluster had acknowledged overcrowding, and was grappling with it. Only the DCS could hold people in custody, but the rest of the cluster could assist in dealing with problems that arose.

He continued that there had been improvements in the Criminal Justice cluster. Additional capacity of courts had been developed. There were 51 new regional courts to deal with backlogs and 23 000 cases had been dealt with since 2006. Serious crime had escalated. Community safety was a priority. Capacity for arrest, investigation and forensic capacity had to be built. More detectives were needed. The challenge was that successful convictions meant more people were kept in custody by the DCS. Alternatives had to be sought. Plea bargaining and alternative sentencing had to be looked at. He noted that 3000 of the ATDs held in prisons were foreign nationals to be deported by Home Affairs. Home Affairs had no facilities to hold such people.

Minimum sentence legislation had been instituted by Parliament to show the public that government was serious about crime, even though the death penalty had been abolished. Debate about that had to be at parliamentary level. Regional courts could currently deal with minimum sentences. There were not enough support programmes that people could be diverted to. There was a lack of social workers. There were budget constraints. The DCS budget did not make provision for alternative sentences.

The question was how the system could be changed to provide for fines as an alternative to incarceration. Police could grant bail. That mechanism was underutilised. There was not always a need for quick arrests to be made. People could be subpoenaed, for instance. Detectives and prosecutors had to be trained. More crime scenes had to be visited. Courts had to reduce backlogs. There had to be higher case finalisation rates. Children had to be diverted from prison. Plea bargaining was underutilised. ATDs had to be fast-tracked.

Legal Aid South Africa (LASA) briefing
Mr Dick Khubana, LASA Legal Manager on National Operations, said Legal Aid SA represented those who could not pay for legal services, through lawyers in its employ. Legal Aid SA worked with other stakeholders such as NICRO. It went into prisons to see who needed lawyers. ATDs were informed of the right to legal representation. Legal Aid SA fully endorsed the alternative sentencing initiative. Its lawyers employed were trained in alternative sentencing and rehabilitation.

Challenges to alternative sentencing included a lack of available Community Service Programmes, especially in rural areas. Home detention for those convicted of non-violent crimes with short sentences, was seen as an alternative. Legal Aid SA would represent children at any preliminary enquiry where legal representation was requested by the presiding officer. All legal Aid SA practitioners were trained to apply their minds to possible diversion in appropriate cases involving adults. They were also trained extensively in bail applications.

Legal Aid SA supported the view that minimum sentences were not effective in reducing crime levels. With regard to plea bargaining, Legal Aid SA practitioners were ethically obliged to draw weaknesses in the State case to the attention of the accused.

Discussion
The Chairperson commented that options for alternative sentencing were limited in rural areas, but of the areas affected by overcrowding, only three were rural. He asked what Legal Aid SA was doing to market itself.

Legal Aid SA replied that there were details posted in police cells and prisons, and on buses.

The Chairperson remarked with regard to the Justice cluster presentation, that the front end of the Justice cluster had been addressed adequately, but the back end not. Bed capacity had increased by 3000. That was the equivalent of one prison. Capacity had been increased, but the question was at what cost. Public/Private partnership (PPP) facilities at Limpopo and Mangaung were costing R760 million per year, for 25 years. The back end of the system had not received equal attention. The Portfolio Committee had recently met with the Auditor General who said the DCS performance merited an adverse audit opinion. That meant that the Justice cluster could not verify DCS figures. They were unverifiable.

Mr Du Rand replied that the Justice cluster addressed the back end of the system through addressing matters such as parole. It was not only the DCS who had unreliable information. Electronic information was being extended.

Ms M Phaliso (ANC) remarked that she was frustrated. No remedy had come to the fore. The JCPS cluster had to indicate where more blocks had to be built, and who had to build them. Concerning the loss of court records, she said that the DCS had to sit with the overcrowding and had to take the blame. She asked about the delaying of court dates. She could not agree that people had to have a monitorable address to be eligible for parole. Everybody came from somewhere. Collective remedies had to be found. The cluster had to sit and strategise. It would not help to build new PPP facilities. There had to be work on the real problem. Officials and courts placed a burden on the national budget through negligence.

Mr Du Rand answered that the problem of lost records were recovered by electronically scanning dockets.

A member of the Police Portfolio Committee, said that lawyers were overloaded with cases, and tended to agree with magistrates and to please the court as a result. The JCPS had to look at the attitude of magistrates. The Ga-Rankuwa court had to open at 9h00, but it usually only started at 10h30. Courts would do one case, go for tea, and then do one more before lunch. She asked how admission of guilt could be monitored to ensure that there had not been pressure from any quarter.

Mr Du Rand responded that there had been a discussion with the Chief Justice about the attitude of magistrates.

Professor Stephan Terblanche, speaking in his private capacity, said that the situation was complex. The state was facing a serious situation. The state could not control what came from society. He had been researching overcrowding since 1986. It was important to think not so much in terms of any solutions forthcoming, but rather to identify the difficult decisions that had to be taken. For instance, an executive decision to simply release all prisoners would solve the overcrowding problem immediately. Hard decisions had to be made. There were 16 000 murders per year, and 50 000 rapes. There were 160 000 prisoners. Decision makers had to deal in tens of thousands. Concerning serious crime, society was not protected through sentencing, when the same numbers of people were still committing crime. High crime numbers fed the prison population. The problem could be approached from the top down, if the government were to use police intelligence and project the number of prisoners that could be expected. An approach from the bottom up would argue that there were 110 000 places, and that the criminal justice system had to work to that. Length of sentences were too long for the existing capacity. There had to be an undertaking from the police to carry out only essential arrests. Unnecessary arrest forced more people into the system.

Mr Du Rand replied that overcrowding and ATDs was a problem for the whole cluster. There was a movement towards approaching Treasury as a cluster, for budgeting purposes.

Mr Max commented that bail was misunderstood by the public. It was not a punishment. Its purpose was to secure the suspect. The police measured success in terms of arrest, whereas true success for the police was an absence of crime. Crimes were committed through need or greed. Police visibility inhibited crime. There had to be synergy between the Social cluster and the Justice cluster. Alternatives to gangsterism for youth had to be found.

Mr Du Rand replied that synergy between the Social – and Justice cluster could be achieved through actions such as victim support.

Mr S Abram (ANC) called on the JCPS cluster to address the root causes of crime in the community. There were socio-economic reasons for crime. Law enforcement was not a solution. South Africa was at war. Nothing was safe. In war, pro-active solutions had to be sought. Poverty, mental health and dysfunctional families had to be addressed. ATDs could not be the sole responsibility of the DCS. There were other departments in the JCPS cluster. ATDs could not be placed with sentenced criminals. Officials lacked commitment and integrity. Human beings were equipped to find solutions. A national indaba was called for. Abalone was about to become extinct in certain areas because in poor communities, smugglers helped to feed children by rewarding them for finding abalone.

Mr Du Rand responded that not all ATDs were unsentenced offenders. Some had other convictions.

Ms Ngwenya commented on challenges to people released from jail. With a criminal record, they could not find work. What was being done to prevent recidivism? She asked how long a criminal record remained with a person. There had to be a mechanism for taking people off the list. How does one ensure that victims attended parole board hearings?

Mr Du Rand replied that victims often did not know details of the case. Electronic monitorable progress would increasingly be made available to victims. The Judiciary was sending out messages to the public about victim participation in Parole Boards.

Ms M Nyanda (ANC) said that there were inmates who claimed that Legal Aid SA had told them to plead guilty, and that was why they had been sentenced. Magistrates were not partial to non-custodial sentencing.

Mr M Swathe, DA member of the Police Portfolio Committee, asked if there were enough legal aid practitioners to help ATDs, and whether the lawyers used were screened. There was the perception that Legal Aid SA was linked to government. He asked how that impression could be addressed.

The Legal Aid SA spokesperson replied that if a magistrate advised someone to get legal aid, that was because it was difficult to deal with an unrepresented person. Court interpreters would sometimes ask if an accused wanted a government lawyer. That perception did exist. Yet lawyers were drawn from private ranks.

Mr George told the JCPS cluster that magistrates were harming the country. There had to be systems to monitor them. They worked as if on holiday, came late and took few cases. He suggested that a type of prison be built that could be converted, if there ever were to be a decrease in crime. Overcrowding created criminals. With regard to long term sentences, he said that criminals were not Christians. Horrible crimes were committed, and judges had to send out a message. Emphasis on the rights of criminals lost sight of the fact that criminals deprived others of their rights. The rights of victims were a priority. He did not agree that arrest could be unnecessary. Police had to arrest crime suspects. Social causes were not the responsibility of the cluster. It had to prevent crime and arrest criminals.

The Chairperson told Mr George that victim rights were indeed important, but the fact of the matter was that jailed criminals eventually returned to society, even if it was after 20 years. To protect victims over the long term, long sentences were not enough.

Ms M Mdaka (ANC) said that she did not understand the work of Legal Aid SA. They lost all their cases. It seemed that the lawyers worked just to get paid. She asked to whom they were accountable. She had never seen them win a case.

The Legal Aid SA spokesperson responded that the quality of all South African lawyers was open to criticism. Rightly the Magistrate had to consult with someone advised to plead guilty, to determine if the accused really wanted that.

Ms Venessa Padayachee, NICRO National Co-ordinator, said that crime was a symptom of a deeper problem. Fines and plea bargaining had to be explored as alternatives to custodial sentencing. Rehabilitation did not take place in prison. The root causes of crime were not dealt with. It went deeper than mere greed. There were contributing factors such as dysfunctional families and sexual abuse. It started in the home with the parents. The individual had to be seen in context. A prison sentence without a sentence plan was no help. All stakeholders could be smarter about crime prevention. Collective solutions had to be sought. Thinking had to change. There had to be engagement with communities and families.

Ms C Blaai (COPE) said that there were offenders who were held because they could not afford bail of R500 or R750. She asked if they knew that they could apply for bail reduction.

Ms Chikunga concluded that crime prevention needed more inputs. During 2009/10 there had been 113 000 robbery cases, and 16 000 murders. Those were realities. Such people could not be allowed to roam the streets. But prisons were overcrowded. The meeting had not even considered matters such as non-functioning police stations. Wherever the JCPS cluster had failed, there had to be quick intervention to provide redress. It was true that prisons bred criminality, but yet one could not do without them.

The meeting was adjourned.


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