A summary of this committee meeting is not yet available.
SAFETY AND SECURITY PORTFOLIO COMMITTEE
9 September 2000
FIREARMS CONTROL BILL: DELIBERATIONS
Firearms Control Bill
Department Draft of Alternative Provisions for Firearms Control Bill
The committee discussed clauses 4, 20, 21 and 105 through 120 of the Firearms Control Bill. One of the main points that was discussed was whether or not the word "must" instead of "may" should be used in the Bill, thereby giving the courts less discretion in the application of the law. By and large, the ANC members argued in favour of the word "must" while the opposition members mostly favoured the word "may". There was frequently strong disagreement between some of the members and many of the clauses had to be held over for further discussion later. The atmosphere of the meeting was on the whole good-natured although, at times, a little tense.
The controversial Clause 120 dealing with Presumptions of possession of firearm or ammunition was discussed at length. The ANC expressed their support for the presumption of possession of a firearm or ammunition (Clause 120 in Chapter 15). The infringement of the right to silence which the presumption will cause to innocent people must be balanced with the ultimate goal of reducing the levels of crime. In this sense the presumption is justifiable. The UDM noted a few reservations to the clause but indicated general support for the presumptions contained in it. The Democratic Alliance and the Freedom Front are opposed to the presumptions as they infringe on an individual's constitutional right to silence.
Adv Kok noted that three clauses, those numbered 4, 20 and 21 had previously been skipped. These had since been included in the Draft of Alternative Provisions document for consideration:
Clause 20 Licence to possess firearm in private collection
Adv Kok said that in this clause a concern had been raised about the use of ammunition parts in privately held ornaments. Many people had such ornaments and because of this, parts of this clause had been deleted.
Adv Swart (DP) replied that the concern was understandable yet there was also a concern that some of these ornaments could be converted back into usable ammunition. For this reason, could there not be an inclusion in this section of the word "usable"?
Adv Kok responded that there was not really a need for such a change since the problem that Adv Swart had referred to, was negated by the fact that explosive parts such as primers for shells were directly mentioned as being prohibited in the Bill.
Gen Viljoen (FF) said that he supported Adv Kok's response in this regard.
Adv Kok said that on sub-clause 20(2) stating that proof of valid membership of an accredited collectors association was sufficient for a collector's licence, concern had been expressed that in large organisations it would be hard to conclusively prove membership.
The Chairperson, Mr M George, said that there was no agreement on this and that the issue therefore needed to be debated further because there was a recognised problem with people fraudulently claiming membership of organisations.
Mr Ndlovu (IFP) said that he did not see why there was a problem with an affidavit from the chairperson of an organisation being used as proof of membership, as in such an instance it would be clear who was liable in the event of a dispute.
Dr Geldenhuys (NNP) asked if a membership card would not in fact be sufficient since it involved less administration than an affidavit.
Mr Ndlovu (IFP) asked in response, what would happen in the case of double memberships?
Mr Zondo (ANC) said that he was opposed to the use of the word "shall" instead of the word "may" in many instances in these clauses.
Mr Kgauwe (ANC) said it was clear that there were many different interpretations on this matter, and asked that the committee leave this for the moment and come back to it later. The Chairperson agreed to this saying there was indeed no consensus and that the committee would therefore, leave it for the time being.
Adv Kok said that sub-clause 20(4) had been changed in that the previous draft had stated that collectors were only allowed to use their firearms in their collections on accredited shooting ranges. This had been changed so that collectors could now use these firearms for any lawful purpose. This was still to be discussed by this committee.
Gen Viljoen (FF) asked if this could be changed to say any lawful purpose in respect of this Bill?
Adv Swart (DP) said that this came down to self-defence once again. Sub-clause 20(4) said that this should include self-defence as a lawful purpose where the need arose. The chairperson remarked that some of these arguments were repetitions of previous arguments and this was a problem for the committee.
Ms Van Wyk (UDM) said that if the section in sub-clause 20(4) were removed, it would be open to a lot of loopholes and it would be possible for an individual to acquire a lot of guns in a private collection. Was this not in fact a policy change? Adv Kok agreed that it was a policy change but that all the changes in the Bill being dealt with here were, to lesser or greater extents, policy changes.
Dr Geldenhuys (NNP) said that he wished to make the point that gun collectors were by and large, not criminals, and that the legislation should therefore not be overly restrictive. The Chairperson replied that criminals were very smart and that if there was a loophole here, then criminals would try to pose as collectors. He asked that everyone bear that in mind throughout the Bill.
Mr Ndlovu (IFP) asked whether the proposal before the committee was therefore to remove this clause or to include it?
Adv Swart (DP) said that if criminals tried to pass themselves off as collectors, there was not much the committee could do about that, it would be up to the police to deal with. He said that he did not believe there was in fact a loophole in this change to sub-clause 20(4).
Mr Zondo (ANC) said that he had a problem with the approach whereby policy changes were being made in this way. He asked that the committee revisit this clause later. The Chairperson agreed that this section should be revisited later but added that collectors collected firearms not to use them for other purposes.
Dr Geldenhuys (NNP) asked by way of clarification, what was the availability of accredited shooting ranges? Adv Kok replied that there should not be any problems for shooting ranges to be accredited. They just needed to comply with safety requirements in order to receive accreditation.
Gen Viljoen (FF) said that he wanted to add his opposition to the inclusion of the wording, which restricted the use of collection firearms to accredited, shooting ranges. There were still some firearms in collections, which were very old weapons, some even dating back to the time of the Boer War, which could still be used as hunting rifles. Older people with such weapons, for instance, may want to use these weapons to hunt on their farms.
The Chairperson replied that there were still other laws, which applied to these types of situations, and that all the committee members should bear this in mind.
Adv Swart (DP) said that it was exactly because of the Chairperson's point that this clause should not included these words.
Mr Zondo (ANC) said on a point of order, that Adv Swart had discussed this matter after the Chairperson had said that the committee should leave the matter.
Adv Swart (DP) replied, on a point of order, that the Chairperson himself had discussed it after saying that the committee would leave the matter and only then, had he made his point. The Chairperson replied that the committee would indeed discuss this later.
Clause 105 Declaration by registrar of person to be unfit to possess firearm
Adv Kok said that only technical changes had been made to clause 105. The registrar should have the powers to declare a person unfit to own a firearm and the process should not need to go through the courts, as this would overburden the courts. The Quaker Peace Centre had requested that the word "may" be replaced with "must". This would remove all discretion on the part of the registrar and was therefore rejected. Other issues were involved in some of the proposals but since these amounted to policy changes it was decided that they needed further discussion. Gun-Free South Africa had proposed that anyone who threatened any other person with any means should be declared unfit to own a gun. All extremes were possible on this issue and a balance was needed which would take into account serious threats only. Determining how to apply the correct balance was a policy issue.
The Chairperson asked whether or not the period of 30 days before a person could be proved unfit, was too long? How was the period of 30 days arrived at? Adv Swart (DP) said that he agreed with the Chairperson that it was too long.
Adv Kok replied that there could be a time delay between the attempted notification of a person as unfit and that person actually receiving the notification. In practice, the police usually confiscated firearms immediately in such cases.
Adv Swart (DP) said that the wording should be changed therefore, so that it referred to the period after the person was notified. Adv Kok said that this was a sensible suggestion.
The Chairperson asked whether it would be possible to use the word "must" instead of the word "may"? Mr Ferreira (IFP) replied that the word "must" represented a problem because it could be unconstitutional.
Mr Kgauwe (ANC) said that the word "may" was too subject to loopholes and he preferred the word "must". Mr Ferreira (IFP) replied that the registrar would not be put in such a difficult position if the word "may" was used. It did not take away any powers from the registrar. It would in fact be quite crazy to use the word "must" in this context as it was totally inflexible.
Dr Geldenhuys (NNP) said that if the word "must" was used instead of "may", then the same had to be done for the section dealing with the issue of a competency certificate.
Gen Viljoen (FF) said that he thought that whenever there was a possibility that discretion could be applied it should be so applied because those with the discretion would be the registrar or people working through the courts. For this reason "may" should always be used instead of "must".
Mr Kgauwe (ANC) said that he thought that "must" should be used and that Dr Geldenhuys's linking of the two issues was incorrect.
Mr Ndlovu (IFP) said that discretion should be allowed to the registrar.
The Chairperson said that the issue of whether to use the word "must" or "may" applied elsewhere in the Bill as well and it would therefore be discussed later.
Clause 106 Declaration by court of person to be unfit to possess firearm
Adv Kok proposed amendments to the opening line of this clause. The tabled Bill reads: "A person must be regarded as unfit to possess a firearm if convicted ofâ€¦" and the proposed change gives the court the discretion: "Unless the court determines otherwise, a person becomes unfit to possess a firearm if convicted ofâ€¦".
Adv Swart (DP) said that "must" impeded the independence of the courts and that it was good to have room for the discretion of the courts in certain circumstances. Gen Viljoen (FF) agreed with this principle of allowing room for discretion and added that he thought that the word "must" referred to too many offences in Schedule 2.
The Chairperson asked why clause 106 was necessary when clause 105 seemed to deal with the same matter? Adv Kok replied that clause 106 was very important in that it allowed the court to declare a person unfit to own a firearm far more easily than otherwise would be the case.
The Chairperson replied that he thought that the section was nevertheless too broad. Adv Kok said that this was why they had made the amendment.
Mr Kgauwe (ANC) said that he was of the view that the clause should be kept as it was and that they could not afford to be vague and indeed had to assist the court.
Adv Swart (DP) said that he begged to differ and that he believed that the word "must" did not assist the courts but rather impeded them, taking away their discretion.
The Chairperson asked what was wrong with saying that, "the court must, if convicted" take away a person's firearm.
Adv Swart (DP) said that the DP would never support the word "must" in this context.
One of Adv Kok's colleagues, a senior superintendent, said that this section put the emphasis back on the accused. The onus should be on the accused but the courts should also have discretion.
Dr Geldenhuys (NNP) asked how this related to the principle of an accused being innocent until proven guilty? Adv Kok replied that it did not affect that principle and was purely an administrative issue.
The Chairperson said that the committee could therefore accept clause 106, apart from the constitutionality of the word "must".
Clause 107 Effect of declaration
Adv Kok said that the 30-day period referred to here had already been discussed with respect to clause 105. There were policy issues in this clause dealing with discretion, which had to be debated.
Gen Viljoen (FF) said that he thought that in sub-clause (2) the period of 60 days was unfair. The period referred to there, should rather be one year since during that time the gun was out of the hands of the owner anyway. Adv Kok replied that there was the inclusion of the phrase, "or at the discretion of the registrar" which covered this.
Mr Ferreira (IFP) said that he thought that the section on being able to apply for a licence again after having been declared unfit, five years later should be kept.
The Chairperson said that he thought that 60 days was sufficient time. Gen Viljoen argued that during this time the gun would be in the hands of the dealer, who may have a number of firearms to sell and that 60 days may not be sufficient time because of this.
Ms Van Wyk (UDM) asked that the committee remembers that it was a convicted criminal that was being dealt with here and that this person would have forfeited their right to own a weapon.
The Chairperson said that on the issue of whether or not the period before a person previously declared unfit to own a firearm could again apply, should be five years or not, he believed that it should in fact be ten years.
An ANC member said that he believed that the legislation was unclear on what would be the position on arms dealers themselves, who had sold firearms to people who were declared unfit.
Gen Viljoen (FF) asked how the committee was deciding whether the period already referred to, should be five or ten years? Was it being decided arbitrarily? The person would in any event still have to apply for the licence again, and could always be refused.
Adv Swart (DP) said that discretion should be allowed here for different types of cases. The committee had to be harsh on criminals but also allow for the rehabilitation of criminals.
Mr Zondo (ANC) said that the need for the period of ten years came from the view that people should be of a fit and sober character, which took a lot of time to bring about in some cases.
The Chairperson agreed that people did not change easily. The issue of whether or not the period should be five or ten years would be left for the time being and would be discussed later.
A different ANC member said that he believed that used firearms were not safe in any hands and that he was not satisfied that dealers were being dealt with adequately under clause 107.
Dr Geldenhuys (NNP) asked how many dealers had been convicted under these types of provisions? Adv Kok replied that very few had been so convicted and that dealers were in fact, stringently regulated.
Clause 110 Duty to comply
Gen Viljoen asked whether this entire clause was really necessary? Was it not a gap for criminals to pose as police with the pretences of checking firearms and firearm licences? In one other section, this kind of clause was preceded by a clause saying that there had to first be identification of the person inspecting, as a true policemen, before any inspections could occur.
Dr Geldenhuys (NNP) said that he agreed about the inclusion of a clause on identification. Mr Ndlovu (IFP) said that he also agreed that the identification of a policeman was very important. Adv Kok said that it would be acceptable to explicitly include wording in this clause about first identifying police officers as such.
Mr Kgauwe (ANC) said that it was necessary to have complete confidence in the police. The Chairperson said that he did not believe that there was actually any problem with clause 110 in this respect. The need for identification was covered, in fact, it was assumed.
Clause 112 Inspection of premises
Adv Kok said that most of the issues in this clause were policy issues that needed to be discussed.
Gen Viljoen (FF) said that he agreed with the Institute of Security Studies (ISS) who had suggested that there was no reason why any organisation should be treated differently under sub-clause 112(2)(a).
Adv Kok said that the South African National Defence Force (SANDF) had strongly argued for being allowed to be excluded from this clause because their facilities had very sensitive security requirements.
Adv Swart (DP) said that the committee should wait to hear from the SANDF themselves, because they did not believe that their exclusion from this clause was justified, unless they could prove otherwise. Perhaps, in order to satisfy them, a clause should be included saying that only persons with a high security clearance should be allowed to conduct such inspections.
The Chairperson said that this section therefore needed to be changed, so that the SANDF, ICD, police and correctional services would not be given notice for an inspection unless the SANDF could prove the need for it to the committee.
Clause 114 Search and seizure in course of policing operations in terms of South African Police Service Act, 1995
Adv Kok said that in some cases, people other than police could conduct search and seizure operations but that it was a procedural matter as to how these people were appointed.
Gen Viljoen (FF) asked why these people should not always be police? Adv Kok replied that there may be cases where this function was either privatised, or where there was some other need for other officials to be given these policing powers.
Dr Geldenhuys (NNP) said that this was a complicated clause, which definitely needed to be discussed further.
Adv Swart (DP) said that he was concerned, especially by the provision that in some cases police would be able to conduct search and seizure operations without a warrant. Adv Kok replied that the reason for this was in order to allow for increased efficiency in the police.
It was agreed that the committee should return to this clause later. Clauses 113, 114 and 115 all dealt with the matter that had just been discussed.
Clause 116 Body prints and genetic samples ("bodily samples")
Adv Kok said that the term "genetic samples" had been removed from the heading and that it had been replaced with the term "bodily samples". Presently, the Criminal Procedure Act did not deal adequately with some of the provisions discussed here, which was why they were included in this clause.
Gen Viljoen (FF) said that on sub-clause 116(1)(a) the reference should be to offences committed under this act only. Adv Kok disagreed, saying that this was not necessarily true. Any offences connected with a firearm could be referred to here.
Adv Swart (DP) said that he was in favour of this clause. The provisions here could also be covered under the provisions of the Criminal Procedures Act.
The Chairperson asked whether or not it would be a good idea to give the police more powers in this clause? Adv Kok replied that this clause represented an example of one respect in which the police were being given more powers. The Chairperson said that the committee had no problem giving greater powers to the police except for the fact that they were worried about the abuse of those powers.
Adv Kok said that the committee's discussion covered clauses 117, 118 and 119 as well.
Clause 118 Inspection, search and seizure for inquiry or investigation (with special warrant)
Adv Swart (DP) asked whether or not clause 118 could be abused with respect to the provisions of clause 114?
Gen Viljoen (FF) suggested that in sub-clause 118(2) it should read "or person authorised by him or her, may" Adv Kok agreed that such a change would indeed be made.
Adv Kok said that clause 118 was tailor-made for the requirements of this Bill. There were also provisions under the Criminal Procedures Act however, and this clause would stand in addition to them.
Dr Geldenhuys (NNP) asked that the reference to "other authorised person", surely had to mean that this was a properly trained person? Adv Kok agreed that it, but that at the moment, the people referred to here would normally be police personnel anyway.
Clause 120 Presumption of possession of firearms or ammunition
Adv Kok noted that Clause 120 was one of the most contentious of the entire Bill.
Dr Geldenhuys (NNP) asked what was the status of section 40 of the current act with respect to its constitutionality? Adv Kok replied that it had been found to be unconstitutional because of the reverse onus presumptions contained in it. These presumptions had therefore not been included in this Bill. The presumptions included here were substantially weaker than what was in the existing legislation. Under this Bill the accused did not have to prove lack of ownership, only a reasonable doubt. These transactions should be declared constitutional in line with the Constitutional Court's decision in the Manemela case.
The Chairperson asked what would occur in cases where a firearm was found on, for instance, a very large farm where the firearm was found many kilometres from the residence?
Gen Viljoen (FF) said that he had an objection against the whole of Chapter 15, which covered presumptions. Was this chapter considered a necessity or just a help to the police? In his opinion, it was making South Africa a police state and as a result, had gone too far.
Adv Kok replied that the necessity for these presumptions came from the director of public prosecutions. Sub-clause 120(2) said that all reasonable steps would have to be taken before these presumptions could apply. These presumptions were a limitation of the right of the accused to remain silent. Adv Kok said that it was his personal opinion that in the majority of cases, these presumptions would not lead to a conviction, but that it would rather, only apply in those cases where the accused could get off by remaining silent.
The Chairperson said that this chapter would help in cases such as those where a taxi was stopped at a road block and an illegal firearm was found in the back of the taxi after all the people had been ordered out.
Adv Swart (DP) said that the committee did not want to see these presumptions being used by the police as a shortcut to doing the correct investigative work, which would result in easier arrests, but of possibly innocent people. He realised the need to empower the police, however this needed to be balanced with the necessity that innocent people should not be arrested under these presumptions alone. He said that what would happen in his opinion, was that innocent poor people would be arrested under these presumptions. They would then possibly be denied bail or be unable to afford it and would then have to spend a long period of time in prison awaiting trial, in the process losing their employment and only means of livelihood, only to be found not guilty because this law could not be sufficiently upheld in court in order to obtain a conviction.
Dr Geldenhuys (NNP) said that there was a debate as to whether this Bill's purpose was to control firearms or to combat crime and it seemed by this clause, that it was the latter. If so, this clause was an inappropriate mechanism. Presumptions were removed from the old act in 1994, why were they slowly been brought back now?
Mr Ferreira (IFP) said that he was concerned about the right to remain silent. If it were removed, that would be a cause for concern and in his opinion, it would be unconstitutional.
Mr Ndlovu (IFP) reiterated Adv Swart's concerns, saying he too was concerned about people being arrested on these presumptions but then not being convicted, in the process spending time awaiting trial in prison and losing their livelihood. Who would compensate people in such cases?
Adv Kok replied that the last matter was more an issue of whether or not bail should be given to people awaiting trial. The issue of the right to remain silent being limited by this clause, was exactly the issue on which the Constitutional Court had ruled that it was in fact justifiable to so limit one's rights.
The committee continued with their discussion on the presumption of possession of firearms and ammunition (Clause 120) which affects the individual's constitutional right to silence.
United Democratic Movement's position
The Chapter 15 redraft addresses their earlier concerns. Clause 120(2) indicates that the state has a responsibility to take reasonable steps to ascertain with reasonable certainty that the firearm or the ammunition is not linked to any other person. They think this is adequate.
They suggested that the word ''state'' as it is used in this subclause be changed to ''investigating officer''. They also suggested that subclause 2 must be subdivided in such a way that it clarifies the role of the State because this has to be clear.
They also asked whether the term ''residential purposes'' in the clause includes farming land.
They raised two concerns:
- In respect of subclause 120(3) they noted that the new 35 seater taxis were soon coming out. This had to be considered in light of the presumption.
- Secondly, clause 120(2) makes a few references to ''over the age of 16 years â€¦ [and what follows thereafter]. The UDM felt that this was should rather be drafted in a more positive sense. Because of the negative drafting it is seen as infringing on the human rights side.
Generally they support the clause. They said that ''it is better than before''.
African National Congress's position
They feel that there is a strong chance that the Constitutional Court will accept the Bill. The opposition parties have not convinced them on the unconstitutionality of the presumptions and therefore have not convinced them that the presumptions should be deleted. The intent of the presumptions is clearly directed at reducing the availability of firearms in South Africa. Nothing has proven it to be convincingly unconstitutional and the ANC decides to stay with this. Individuals should take responsibility for their environment and peace should prevail in South Africa. The ANC supports the presumptions as they stand.
They simply posed the following questions;
Advocate Swart (DP) - does ''in control of premises'' as it is used in subclause 120 (2) mean that the person must be physically present at the time.
Mr Geldenhuys (NNP) - he asked if the purpose of clause 120(3) (a) is to curb taxi violence.
The Inkatha Freedom Party and the Freedom Front did not enunciate their point of view.
Response from the Department (Advocate Kok)
- In clause 120(2) the word ''state'' refers to the state prosecutor. Thus it refers to the process which takes place before the court and therefore it cannot be changed to ''investigating officer''.
- Physical presence: there is no prerequisite of physical presence in the clause. Normally physical presence is required for control. Whether someone is in control without physical presence is a factual question. It will have to be proved by the State on an evaluation of the facts in each case.
- Farm premises does not refer to residential premises but subclause (c) deals with non-residential premises.
- Subclause 120(3): This was included to address taxi violence. The section must be phrased to be less prone to attack from the Constitutional Court. The issue they had to consider was what the appropriate size of the vehicle would be before the presumption was considered unconstitutional. They presumed that the person in the taxi would know who the perpetrator was. If it is a big bus then it will be harder to presume this, therefore the presumption may be seen to be less likely to be justifiably limited.
The UDM said that the point was that taxis were going to change. There were going to be bigger vehicles and this had to be considered.
Advocate Kok said that with a 35 passenger vehicle there would be an increased risk. Changing this clause to accommodate the change is a policy decision.
Advocate Swart asked if the threat of the presumption was supposed to ''get witnesses to talk''. What if the arrest is based on the presumption and there is nothing else in the case except presumptions?
Advocate Kok replied that a natural consequence of the presumption may be that ''people will talk''. However it is not the primary aim of the presumption. The primary aim is to assist in prosecutions. There is also an onus on the police to do a proper investigation first. This is a safeguard in the presumption. The presumption cannot be the only thread to hang on to.
General Viljoen commented that it is not in the general interests of justice to ''go so far. They are taking it too far''.
The ANC commented that innocent people get killed in taxi violence. The Bill can help to control this. Therefore the ANC appeals to the minority parties to support this. If it does not work out, then they can always revisit it.
The IFP said that if people are not found to be guilty and they were arrested then they can sue the state (the police and the Minister of Safety). At the end of the day, the State will pay.
The Chairperson asked Advocate Kok if the state could be sued if the police had reasonable grounds to arrest a person who was later found not guilty.
Advocate Kok replied that this is not the case as the state will only be liable if the person shows that the State acted in terms of a power that they did not have. One does not arrest people because they are guilty but because they are suspected of being guilty. Only if the police abuse their given power can the state be sued.
Advocate Swart said that the onus is on the person to prove that they are not guilty after they are arrested. That is the problem.
The UDM urged them to read subclause 2 carefully. The state must take reasonable steps, there must be a link to any other person, and there must be absence of evidence to the contrary. These three establish a responsibility on the police.
The IFP said that they were creating a lazy police.
The Chairperson commented that there was too much concern about the right to silence. The right to silence creates a lot of problems because ''criminals just keep quiet''. It is in the Constitution however so it cannot be taken away. In SA the problem with police is that they arrest first and they investigate later. This is why there is such a problem with awaiting trial prisoners. The police are not properly trained. Unfortunately the police that SA has is the police that it will have to use, with their limitations.
Advocate Swart argued that this would worsen the problem because they are now empowering the police to go and arrest more people.
The Chairperson said that the inconvenience that the presumption will cause to innocent people must be balanced with the ultimate goal of reducing the levels of crime. For example, if there is a bomb blast and the police put up a roadblock to get catch the bomber, lots of people are inconvenienced. This is justifiable because the aim is to get justice. The inconvenience must be balanced with what one wants to achieve.
General Viljoen said that the presumption attacks the general human right to silence. He does not think that such a measure is necessary to make it easier for the police to solve a case.
The Chairperson said that there were no easy solutions to counter the crime problem in SA but measures were necessary.
In conclusion, Advocate Swart implored the committee to listen to everybody's comments. He said that the minority parties had some valid points to make and they had no hidden agenda. He asked that their comments be listened to with the same sincerity with which had listened to the ANC's comments.
The Chairperson said that the ANC is prepared to listen and accommodate. There could be compromises as long as the fundamental objectives are not lost.
The meeting was adjourned.
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