Meeting SummaryThe Committee Chairperson described the South African Police Service as being in a chaotic condition. Senior members of the Service were under suspension and contesting these decisions in Court. The public was losing confidence in the police. The Acting National Commissioner had been invited to attend a meeting with the Committee the following week, to give Members an opportunity to discuss the problems. Members felt the Minister should also be called to account for the situation within the Service.
Members were briefed on the regulations which were associated with the Independent Police Investigative Directorate Act. The principles related to the drafting of regulations were explained. The contents of each regulation were discussed.
Members were concerned about the restricted access for members of the public to the Independent Police Investigative Directorate, especially in the rural areas. There might be some reluctance to report cases of offences by police members to a police station.
Members wanted to know if the Directorate was investigating Lieutenant-General Richard Mdluli, but were told that this matter was sub judice. Members felt that the police might still be reluctant to cooperate with the Directorate, and asked if the Directorate had the human resources to process complaints within the required time frames. There was concern that municipal police members were not covered in the regulations to a greater extent. In the case of death in custody, it might not be practical to obtain the services of a pathologist immediately.
A number of questions were raised about the regulations, covering such issues as communication with complainants and their families, deadlines for investigations, the implications for municipal police, the use of entrapment in investigations, and reporting procedures..
Members also discussed administrative matters. There was a backlog in approving Committee minutes, and this needed to be addressed. A forthcoming oversight visit was discussed. A workshop was being planned for later in the year to highlight the role of the detective in the work of the police. Members were briefed on the planning being done by the sub-committee on the detective service.
The Chairperson said that there was chaos within the Department of Police. Major-General Johan Booysen, the former Head of the Hawks in
Mr M George (COPE) said that the Minister should account to Parliament. He did not know if even the Acting National Commissioner (NC) of Police was involved in underhand activities. It should be the Minister presenting the briefing, and not the Acting NC.
The Chairperson said that Mr George's proposal would be considered. The Independent Police Investigative Directorate (IPID) Act was now law, and Parliament had to preside over the approval of the associated regulations. A boy had been shot by an off-duty SAPS member with his service pistol. It seemed that nothing was happening. A court case had been started with the community picketing outside the court demanding that he be refused bail. IPID should not hesitate to take action in such a case. The requirements of the Act were clear. Workshops and briefings had been held to inform SAPS members of its provisions. IPID must deal with the culprit, but the station commander was still accountable for the conduct of those under his command.
Briefing by IPID
Mr Francois Beukman, Executive Director, IPID, said that apart from the IPID Act and Regulations, IPID had also developed Standard Operating Procedures (SOPs). Policy guidelines would also be drafted. He informed Members about the principles on which the Regulations were based. Regulations had to be authorised by the Act. They could not increase the ambit, scope or purpose of the Act. Powers and duties of officials had to be included in the Act. Regulations had to be within the powers conferred by the Act. They could not be vague or uncertain, and contain inadequate information. They could not contradict the Constitution. Regulations had to follow the language and style of the Act. They could not be in conflict with the Act, or be used to remedy any defect, or to interpret the Act.
Mr Beukman said that Regulations could not repeal provisions already in the Act. Unless so provided in the Act, Regulations could not create offences or impose penalties. They could not be an unreasonable exercise of power. They could not widen the purpose of the Act. The Act could not be implemented without Regulations.
Ms Bongiwe Tukela, Acting Provincial Head:
Ms Koekie Mbeki, Chief Director: Legal Services, IPID, said that Regulation 1 was purely an introduction. Regulation 2 dealt with the reporting of matters to be investigated. Section 29 of the Act provided for reporting obligations. Reports should be made by station commanders, any member of SAPS or any member of a municipal police service (MPS). All cases listed in section 28(1)(a) – (f) had to be reported, namely deaths in police custody, deaths as a result of police action, any discharge of an official firearm by a police officer, rape of any person in police custody, and any complaint of torture or assault against an SAPS officer. Cases should be reported immediately by telephone or by a report made at an SAPS stations to the relevant IPID provincial office. A written report in terms of form 1 had to be submitted. This did not preclude members of the public from submitting a report, and such reports did not have to be made through the SAPS. The public could also report allegations of corruption using form 2 in various manners. Not all the information had to be gathered before a report was made.
Ms Mbeki said that Regulation 3 dealt with receiving, registering, processing, referral and disposal of complaints. This could be done by any member of IPID or designated member. This member should determine if the matter fell within the ambit of IPID. If so, a case would be registered; if not, it would be referred to the appropriate institution. This should be done within seven days of receipt of the complaint. The registration process was described in detail in the SOP, which made provision for a case intake committee to review allocated cases.
Ms Mbeki said that Regulation 4 dealt with the investigation of deaths in police custody or as a result of police action. An IPID member had to attend the scene of the death. Details of the deceased had to be recorded and witnesses identified. The IPID member would authorise the removal of the corpse and collect exhibits and other evidence, sending items for forensic testing where necessary. The IPID member would visit the next of kin and visit and interview witnesses, obtaining statements in the process. The member would also attend the post mortem. After collecting all evidence and statements, a report was to be submitted to the Provincial Head or Executive Director of IPID. A determination had to be made whether the SAPS member responsible for the death should be arrested. The investigation had to be finalised within ninety days, with monthly feedback to the complainant or next of kin. If the notification was too late for the IPID member to attend the scene, a preliminary or full investigation had to be conducted. The investigator had to attend the post mortem, if not already conducted, and interview witnesses, consider reconstructing the scene of death, take over the police docket, and make recommendations to the National Prosecuting Authority (NPA) or SAPS. The procedure was outlined in the SOP.
Mr Matthews Sesoko, Acting Chief Director: Investigation and Information Management, IPID, said that Regulation 5 dealt with the investigation of criminal matters. The matters contemplated were rape of a person in police custody or by an SAPS or MPS member, even if off duty, torture or assault by a member of SAPS or MPS in the execution of his or her duties, and corruption by an SAPS or MPS member. The investigator would open a docket or take charge of an existing docket, interview the victim, identify witnesses and take statements, collect evidence and refer exhibits to a forensic laboratory. In cases of rape, the victim had to be examined by a medical practitioner, and the investigator had to ensure that the sexual assault crime kit was sealed and sent to the forensic laboratory, and observe the relevant sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
In cases of corruption, the investigator had to be conversant with the Prevention and Combating of Corrupt Activities Act and refer exhibits to a forensic laboratory if necessary. In cases of torture assault, the victim should be examined by a medical practitioner. The scene of the torture should be sealed. All witnesses should be identified and statements taken. A report had to be made to the Provincial Head and the executive director and recommendations made for disciplinary action and/or prosecution. The investigation should be finalised within ninety days. If this was not possible, the investigator had to provide written reasons. Feedback to the victim or the next of kin should be provided at least monthly.
Regulation 6 dealt with the investigation of the discharge of an official firearm. Such occurrences were to be investigated whether or not the SAPS or MPS member was on duty or not, and irrespective of resulting injuries.
Regulation 7 dealt with the investigation of referred matters. This made it possible for IPID to investigate any matter referred to it from by the Executive Director or on request by the Minister, a Member of the Executive Council (MEC) or the Secretary of Police.
Regulation 8 dealt with the securing of a crime scene. This procedure was detailed in the SOPs.
Mr Sesoko said that Regulation 9 dealt with identification parades, the taking of affidavits, giving of evidence, production of documents and submission of information and cooperation by Police. This had to be done in accordance with the procedures applicable to SAPS members. SAPS and MPS members were obliged to cooperate with IPID. The IPID investigator could request written reasons for the failure to cooperate with IPID and could make recommendations to the Executive Director or Provincial Head regarding disciplinary measures. Cooperation had to be provided within 48 hours of a request being made.
Regulation 10 dealt with access to, and control of, confidential information and records. All information had to be secured from access by unauthorised persons. An IPID member who divulged information in contravention of this regulation would be guilty of misconduct and could be charged with a criminal offence.
Mr Sesoko said that Regulation 11 concerned integrity testing and confidentiality of information relating to integrity testing. Integrity testing could be authorised by the Executive Director, an authorised member of IPID or any other authorised persons. Testing might involve entrapment, testing for abuse of alcohol or drugs or the use of a polygraph. Entrapment activities had to be approved by the Director of Public Prosecutions (DPP) in accordance with the Criminal Procedure Act and DPP guidelines.
Regulation 12 referred to disciplinary referrals. Regulation 13 dealt with disciplinary measures in relation to IPID members. Regulation 14 covered security screening investigations. Regulation 15 dealt with reporting. Regulation 16 was of a general nature.
Mr Sesoko said that consultations had been held with SAPS. The IPID SOPs had to be read in accordance with the Act and Regulations.
The Chairperson said that Chapter 9 of the Act dealt with penalties. A fine or a prison sentence of not more than two years could be imposed for various offences.
Ms A van Wyk (ANC) said there were some legal shortcomings. Regulation 4b covered the case of a member of the public reporting an offence. It was a challenge for a member of the public to go through the same procedure as an SAPS member. The accessibility of IPID to the broader public was a challenge. It might not be possible for the public to visit a satellite or provincial IPID office. Complaints could be sent by facsimile, but this channel might not be possible for persons in the deep rural areas.
Ms Van Wyk said that there were no regulations for special investigations. The lack of these might lead to special investigations falling by the wayside. Clustering rape, assault and corruption in one category was not satisfactory, given the different investigative techniques required. Regulation 4 raised two more issues. It implied that all regulations had to be concluded within 24 hours. This was clearly not possible due to processing times at forensic laboratories, as one example. The regulation also indicated that the IPID investigator should handle all aspects of evidence, whereas this would be handled by the forensic staff. She would be satisfied if the obligation on the IPID investigator was limited to overseeing the forensic investigation. Where a post mortem had already been conducted, a report should be required. There was no reference to the responsibility of the secretariat, which should also play a role. IPID regulations should make an impact on SAPS operations. As an example, an SAPS station, possibly at Durbanville, was designed with the detention cells far from the station. IPID had made a recommendation that in this case, members should be stationed at the cells. This could be expanded to a general regulation.
Ms D Kohler-Barnard (DA) asked if IPID had made any investigations into Gen Mdluli, as the allegations against him all involved criminal acts. SAPS should have made recommendations in this regard. If not, she wanted an explanation. There was a perception that he was being protected. SAPS members had to have known what was going on. IPID should have been investigating the allegations. Entrapment was an effective tool. She asked if the ICD had used this procedure. Was there a good working relationship with the DPP? She did not want to see the SAPS sliding back into a situation where they ignored the recommendations made by ICD and IPID with contempt. She asked if Regulation 12 was sufficient or if it allowed SAPS to ignore IPID. The case then -- which might not have changed -- was that SAPS took internal action and members found guilty of malpractices never faced the criminal charges which they should have.
Rev K Meshoe (ACDP) was also concerned with the accessibility of IPID. There was a need for an extensive public awareness campaign. Matters of corruption and misconduct by SAPS officers should be reported. Ordinary members of the public would not be aware of the procedure to lay complaints. Regarding the discharging of a firearm, and the threatening of a member of the public with a service weapon, he asked where the burden of proof lay – with the accuser or the accused. In cases of an allegation of rape, there was no time frame given for the required examination by a medical practitioner. The regulation did not reflect any urgency, as was indeed the case with other regulations.
Ms M Molebatsi (ANC) said that the regulations provided for the lodging of a complaint in writing, even by facsimile. She asked if this implied that members of the public could not visit an IPID office. She also questioned the grouping of rape, assault and corruption. There was a 90-day limit to the finalisation of a complaint, but the investigator could request an extension. She asked if there was any limit to the number of extensions.
Mr G Lekgetho (ANC) felt it was important that Members were briefed on which departments and civil society organisations had attended the workshops. SAPS members had to set an example for the community, and special attention had to be paid to dissuading them from committing crimes against detainees.
Mr George cautioned about certain references that had been made to the ICD. Visits to the next of kin were really the responsibility of SAPS. He had no problem if IPID did visit the family, but the obligation should rest with SAPS. Any unnatural death in police custody should be investigated by SAPS. SAPS should not be relieved of certain obligations. He asked if every death as a result of police action would be investigated. He used the example of shoot-outs between SAPS and dangerous criminals during armed robberies. He did not think that investigation by IPID was really necessary in such a blatant case of SAPS defending themselves. There had been a problem in the 1990s. Many meetings and road-shows had had to be held then to reassure SAPS members that they had the right to use their firearms in self-defence. The law had then been designed to discourage SAPS members from shooting at harmless petty criminals. SAPS members were trained to shoot to disable suspects, and occasionally death resulted from an intention to wound only.
Mr V Ndlovu (IFP) asked if the reporting deadlines were compatible with the available human resources (HR). If not, it was a case of “pie in the sky” regulations. He asked if the regulations regarding reporting back to complainants would be practical, given HR constraints.
Mr L Ramatlakane (COPE) queried Regulation 2. It was not clear what members of the public in remote areas would do when form 2 was needed for the report. Regarding Regulation 4, he noted the time limits for the various phases of the investigation. He felt that these investigative techniques should be done more quickly. He asked what the starting time of the 90-day period should be. Some detainees had died in police custody in December 2011 in Nyanga. He had queried this only in May, some five months later, and the investigations had not been completed. He asked if IPID would have the tools it needed to comply with Regulation 8. What protocol was needed to liaise with SAPS and the Minister? Did IPID have the capacity to satisfy the regulations?
Mr P Groenewald (FF+) also commented on form 2. If a member of the public wanted to lay a complaint, a user-friendly format was needed. The public would lay most of the complaints. The circumstances leading to a complaint would be traumatic. There was no provision for an identity number for the victim, even though there was provision for a passport number, which not every person possessed. Telephone numbers could change overnight. The identity number of the complainant should also be included to make that person more traceable. He would like to see facsimile numbers and email addresses. It was not clear what procedure would be followed when the complaint was handed in at an SAPS station, and there should be a way to send this complaint directly to IPID.
Ms P Mocumi (ANC) asked what time frames were applicable for an IPID investigator to arrive at a crime scene and carry out the necessary preliminary investigations. She asked if IPID had the HR capacity to carry out the investigations. She had been at a site where the scene had been cordoned off, but investigators had arrived only two hours later. In the case of death due to police action, she asked if any qualification were needed. This could be by an SAPS officer, on or off duty.
Ms Van Wyk said that too little emphasis was placed on MPS members. They were cited in some Regulations, but not in others. For example, there seemed to be no reporting obligation on MPS. Their activities might escape scrutiny as a result.
The Chairperson said that some questions had been pre-empted by the listing of the principles relating to the drafting of regulations. She referred to regulation 3.12. She was confused over the deadline for reporting back to complainants in this case. She asked if the seven-day period for reporting to the complainant was from the date of the complaint, or after commencement of the investigation.
She asked what would happen with a corpse if a pathologist was not immediately available for a post mortem. Was there any provision for an investigator to delegate some person to visit the next of kin, as they could be in a totally different part of the country? A post mortem should be performed for all cases of unnatural death. There should be clarity on who would attend the post mortem.
She was also curious to know if there was any investigation into Gen Mdluli, and the Cato Manor unit.
Ms Kohler-Barnard said that there had been a reference to section 29 of the IPID Act in a recent press release. This had referred to late reporting of cases. She asked if any SAPS members were facing arrest following complaints. This was an ideal opportunity for IPID to make its mark.
The Chairperson agreed with this point.
Ms Van Wyk said that the Act made provision for IPID to refer complaints to other bodies. She felt that there should be a regulation on record-keeping where this occurred.
Mr Beukman said that the Regulations were an improvement on the previous situation, although they could not expand on the Act. There had been no SOP in the past. Guidelines would be issued. Recommendations made by Members would be considered and the Regulations could be supplemented as a result. Investigations into the affairs of the Cato Manor unit were being finalised and should be concluded shortly. Gen Booysen was under investigation. The Regulations would be reviewed within a year.
Mr Sesoko said that recommendations on special investigations and the role of the Secretariat would be included in the guidelines. The Directorate for Priority Crime Investigation (DPCI, commonly known as the Hawks) had started an investigation into Gen Mdluli before IPID had been formed. The issue had been taken to court and there was no reporting obligation. The matter was already sub judice, which made it difficult for IPID to become involved.
Ms Kohler-Barnard interjected. The Mdluli matter had been front page headlines in the newspapers for months. She did not believe that IPID had no role to play. The Secretary of Intelligence was busy with an investigation into the alleged misuse of secret funds, but the results of this might not be made public. It was a mystery why the charge of murder had been dropped. The allegation covered a case of criminality by an SAPS member.
The Chairperson reminded Members that the death of the person concerned was the subject of an inquest. This might lead to a murder investigation. The family should know if their loved one was indeed murdered, and if so the perpetrator should go to jail.
Ms Kohler-Barnard agreed, but there were many other serious allegations of corruption and fraud on a wide scale.
Mr George noted that an urgent meeting had been requested with SAPS. His advice to IPID would be to wait until the meeting scheduled for the following week. The Minister should be questioned. The Acting NC and the Hawks would be present.
Ms Van Wyk said the issue had been dealt with at the start of the meeting. IPID had said that the Inspector-Generals were tasked with controlling secret funds. Nothing was stopping IPID from registering themselves as an interested party at the inquest.
Mr Sesoko noted the inputs made by Members. In terms of entrapment, there had been no provision in the ICD legislation for integrity testing. There was an extensive programme in the current financial year to promote awareness. This would be done jointly with SAPS.
He noted the concerns of the lack of accessibility to IPID offices. The public could lay complaints with IPID directly. Where matters were referred to other organisations, the information would be available on request. In terms of investigation procedures, IPID members had to attend the scene of a rape complaint. The terms of the Sexual Offences Act were complied with, in particular the need for immediate medical attention. This had been done in certain cases already reported to IPID.
Mr Sesoko said that torture had been seen as an extension of assault. He did not have the names of the organisations with which IPID had co-operated, but the information would be provided. Currently, all allegations of SAPS members torturing community members were investigated. The IPID visit to the next of kin did not preclude the SAPS from discharging their own responsibilities. Much information could be ascertained from interviewing the victim's family. It was also important to advise the family that IPID was investigating the death. Every death as a result of police activity was investigated in terms of the Act. IPID could make a ruling that the killing was justifiable, as in the example of an armed robbery.
Some of the time frames had come from the Committee. It was necessary to reach finalisation with the cases. It would not always be possible to comply with the time frames, in which case the investigator had to provide written reasons. The monthly report to complainants was needed to keep them abreast with developments. Many complaints against SAPS were due to a lack of feedback. Management could draw reports to see if this was being done, and would take corrective action where necessary.
Mr Sesoko said that the thrust of the Regulations had been to ensure that every action should be taken that would have been done if IPID had been able to attend the scene itself. In some situations there had been no reporting. If a pathologist was unavailable, the investigator would have to consult with the Provincial Head. In this case the corpse would be removed to the mortuary and a date set for the post mortem. The investigator would identify issues to be investigated based on their findings at the scene, such as the nature of the wounds inflicted. This was particularly relevant where there were allegations of torture.
The Chairperson concluded that the investigator would use his or her discretion. Pathologists would often not be available, especially in the rural areas.
Mr Sesoko said that there was an agreement with the Department of Health to transport the victim of an unnatural death to the nearest pathologist. The investigator might attend in person. The District Surgeon in an area might not always be aware of this arrangement.
Mr George said the system seemed to be working properly at present. He was worried that more might have been put into the Regulations than was necessary. Technical challenges might be made in court where regulations had not been followed, even if the regulation in question was not really needed. The pathologists always arrived at the correct information. He asked what the IPID investigator would know about causes of death.
Ms Van Wyk said it was not uncommon for investigators to be present during a pathological investigation. It would be unreasonable to expect a pathologist to be present at a crime scene.
The Chairperson person said the real issue was the removal of a corpse from a crime scene, and whether this could be left to the discretion of the investigator. Ordinary doctors performed autopsies in rural areas.
The Chairperson asked why investigators should report to the Executive Head. She felt that the reporting channel should be to the Provincial Head.
Mr Sesoko said that any referral went to the Provincial Head, who would allocate an investigator. The report could not go to the Executive Director without being seen by the Provincial Head.
The Chairperson quoted sections from the Regulations which spoke to reporting to the Executive Director and/or the Provincial Head.
Mr Sesoko said that the point would be considered. The protocol would determine the role of the different parties. He acknowledged that there had been a lack of reference to MPS, but they were part of the protocol.
Mr Lekgetho said that investigations would continue into allegations of rape, corruption and torture. He asked if the training of investigators would cover all of these crimes.
Mr Sesoko said that the staff had been divided into four groups, the first of which had recently concluded their training. A manual was being developed to address the section 28 offences to provide knowledge to the investigators. A qualification might be developed.
Ms Van Wyk said that IPID could make recommendations to SAPS regarding their recruitment policy.
Mr Beukman said that there would be a meeting with SAPS on the section 28 offences in the following month.
Ms Mbeki said that the 24-hour period had been set because investigators could take statements from witnesses at the scene and gather evidence while still fresh. It was not the intention to complete the investigation within 24 hours. Some of the other activities could be completed within the 90-day period. Medical examinations on rape victims were conducted in terms of the Sexual Offences Act. This provided for a 72-hour time frame. This would be included in guidelines. Section 28 split the two cases of death in police custody and death as a result of police action. Members of both SAPS and MPS were obliged to report cases to IPID. In the case of victims being far removed from their next of kin, either the Provincial Head of Executive Director could appoint another investigator to visit the next of kin.
The Chairperson said that the Regulation needed to be worded specifically. It should be stated that either the Executive Director or Provincial Head should cause the visit to happen.
Mr Sesoko said that SAPS had to report all cases of the discharge of a firearm. IPID had the burden of proof to prove that the discharge did happen, and what the consequences had been. The seven-day period quoted related to the acknowledgement of the complaint and the provision of feedback. This remained at seven days.
Mr Ramatlakane said that the question of consultation should be considered during the review phase. Previously the completion of the investigation should have been by the end of the current financial year.
Mr Sesoko said that if the investigation could not be completed within the 90 days, then an extension should be requested.
Mr Beukman said that performance agreements had been concluded with staff members. The R40m in the budget should be spent wisely.
The Chairperson reminded IPID of their role to ensure that SAPS members acted in a responsible manner. SAPS was a huge organisation. Professionalism had to be displayed throughout the service. There was a legitimate mandate for IPID to perform its work. The Act must take its course where people did not comply or conform. Constant monitoring was needed.
Ms Van Wyk was ready to present feedback on the work of the sub-committee on the detective service.
The Chairperson asked Members to consider the draft programme for the third term. She excused the IPID delegation. The minutes of previous meetings would be held over for another meeting.
Ms Kohler-Barnard noted that the oversight visit had included the following Monday. Members had meetings planned in their constituencies for that day, and on the weekend in the middle of the oversight period.
The Chairperson understood the problem, but deferment would have an impact on the effectiveness of Members to conduct oversight activities.
Mr Lekgetho said that Members with other commitments could be excused from oversight visits for the day.
Mr D Stubbe (DA) reminded Members of the distances involved in the visit programme.
Mr Ramatlakane asked if an approval in principle was required, which could still be changed. He proposed that the programme be accepted, seconded by Mr Ndlovu.
The Chairperson said that the final programme should be tailored to meet the availability of Members.
Ms Van Wyk said that the sub-committee had met twice. The role of the detective service and the challenges they faced would be highlighted. Five topics would be identified, with two specialists presenting short speeches. A panel discussion would follow. Various role players had been identified, including various academic institutions and government organs. Several non-governmental organisations would also be invited. The Old Assembly Chamber had been booked provisionally. Invited organisations would be requested to put forward their costs. Some sponsorship had already been offered. A draft programme had been developed.
Mr Ndlovu proposed that the Chairperson should chair the proceedings on the day rather than some outside facilitator.
The Chairperson said that there was a difference between facilitating and chairing a meeting. This question could be finalised later. The task team had put some names forward.
Mr Ndlovu said that the Chairperson should open the meeting and then hand over aspects to facilitators.
The Chairperson would like to see what international trends were.
Ms Kohler-Barnard said a lot of research had been done. An academic might be a good choice, particularly one well versed in international best practice.
Ms Van Wyk said that all speakers should provide a comparison to international trends in that field.
The Chairperson said objectives should be formulated to guide the deliberations on the day.
Ms Van Wyk said that minutes should be dealt with on a weekly basis to prevent long meetings to deliberate on historic meetings.
Ms Kohler-Barnard suggested that once the backlog had been cleared, the minutes of the most recent meeting should be adopted at the start of each scheduled meeting.
The Chairperson said that the minutes first went to a Parliamentary Committee to approve, and then only came to the Chairperson of the relevant Committee. This sometimes resulted in delays.
Ms Van Wyk said the issue raised by Ms Kohler-Barnard had been decided the previous year, but had not yet been implemented.
The meeting was adjourned.
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