"Hawks" DPCI Head suspension; IPID Recommendations implementation: joint input by SAPS, IPID, MPS, CSP

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30 January 2015
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Committee decided that the Police Minister's request to have suspended head of the head of the Directorate for Priority Crime Investigation, Anwa Dramat, removed from office, should be referred to the Speaker of Parliament.  Section 17 of the SAPS Act says a committee of Parliament must entertain this request by the minister but it was not clear if that committee is the Portfolio Committee on Police or a different committee, or even an ad hoc committee. In the absence of clear guidelines, the only authority that could make a decision on whether the committee could proceed, was the Speaker.

The Committee met with the Civilian Secretariat for Police (CSP), the Independent Police Investigative Directorate (IPID), the Metro Police Service (MPS) and the South African Police Service (SAPS) to be briefed jointly on the important matter of adherence to IPID recommendations. The joint presentation began by explaining the background and need for a joint presentation before moving on to discuss IPID concerns and challenges. These concerns and challenges related to data discrepancies, different processes and levels of dealing with recommendations and interactions across the agencies, lack of effective communication and a lack of common understanding in terms of terminology. Other obstacles were with timelines and the submission of documents/recommendations/ reports being late, delays in addressing backlogs, inconsistent sanctions in disciplinary processes and Section 30 of the IPID Act omitting the MPS.  Thereafter remedies for each of these challenges were addressed.

With all the agencies involved in attendance, lively discussion ensued after the presentation about the reason for backlogs and how they would be dealt with, the IPID process for submitting recommendations, commitment of senior decision-makers to attend meetings and forums and the uniformity / standardisation of sanctions. Members were particularly concerned about fighting systemic corruption within SAPS and MPS and there was discussion about the use of modern technology to combat and root out corruption as well as assist in policing. There was debate on section 30 of the IPID Act which omitted the MPS, amendments to the IPID legislation, criminal versus disciplinary processes, adjusted timelines and deadlines as well as the mandate, jurisdiction and accountability of the MPS. Members were pleased with the joint progress made in improving the liaison amongst the agencies.

Meeting report

Committee Decision on the suspension of DPCI Head Lt. Gen. Dramat
The Chairperson said that he had looked at the legislation and at the request of the Minister. In the last few pages of the Constitutional Court judgement, the Judge (as the Minister highlighted yesterday), identified a number of lacunas in the legislation around the trigger for initiating  parliamentary proceedings. It was important for Parliament to act in terms of the Constitution, the law, the rules and precedence. With such an important matter, Members were duty bound to look at everything before them, including the Minister's request and the current legislative framework.

The Chairperson had a problem with section 17 of the SAPS Act which he felt was not clear enough for the Committee to proceed with the request of the Minister. The section made reference to “a Committee of Parliament” needing to entertain the Minister’s request. It was not clear in this Act or the Constitutional Court judgement that this committee was necessarily the Police Committee. In terms of the rules, it could be argued that it should be a different committee or even an ad hoc committee. The only authority in terms of parliamentary procedure was the Speaker of the National Assembly.

The Chairperson suggested the Committee take note of the letter of the Minister of Police and write to the Speaker to seek guidance on whether indeed it was the Portfolio Committee on Police who could entertain this matter. This concerned questions of rationality and legality. The uncertainty in terms of section 17 of the SAPS Act needed to be spelt out. The Committee could not start a process where there was not certainty.

Ms D Kohler Barnard (DA) appreciated this step back to look at matters. She warned the Committee that this dance was seen before when the head of the Hawks in KZN was suspended. Allegations made by a man serving massive jail terms, were taken as gospel. The head of the KZN Hawks then had to go through severe personal hardship having to be cleared by the labour court, the high court and a disciplinary hearing within SAPS. Even, the National Commissioner, illegally, wrote to the KZN Hawks, asking why he could not be fired. This was the same situation again – this had nothing to do with Lt. Gen. Dramat, who had not been arrested or charged in a court of law, or found guilty of anything. Amorphous allegations were being used because Lt. Gen. Dramat asked for the Nkandla files – two days later he was suspended. The Committee was not a court of law and she could not be put in a position where Members acted as if they were lawyers and judges.

The Chairperson noted the Committee was not yet dealing with the merits of the case at all, at this stage. It still needed to be determined whether the Portfolio Committee was the appropriate forum.

Mr P Groenewald (FF+) thought this was a good suggestion given the number of lacunas. The Committee was obligated to ensure the correct procedures were followed when it came to legislation. This case was a high profile matter and he appealed that constitutionality be complied with in terms of process. The FF+ supported the route of writing to seek the guidance of the Speaker for clarity.

Mr M Booi (ANC) stated the ANC also supported the decision of the Chairperson as it was important to get to the bottom of the matter. The details would be dealt with as it was presented. Perhaps the documentation should be prepared for Members if the Speaker gave the Committee the go-ahead.

Mr L Twala (EFF) stated the EFF supported the decision of the Chairperson for the process to be guided by the Speaker.

The Chairperson thought there was consensus on the matter so he would write to the Speaker indicating the Committee received the letter from the Minister. The Speaker would need to provide guidance about section 17 of the SAPS Act on whether this Committee indeed was the relevant one to investigate this matter. This process would also be communicated to the Minister.

Implementation of IPID Recommendations: Joint Presentation by SAPS, IPID, MPS and CSP
The Chairperson noted the apology of the National Commissioner, Ms Riah Phiyega.

Ms Reneva Fourie, CSP Secretary, provided the background to the presentation noting that on 19 November 2014 the parties (SAPS, IPID and CSP) were invited to present on the challenges experienced in terms of the implementation of the IPID recommendations. On 26 November 2014 the SAPS, IPID and CSP had a workshop to discuss the challenges and to explore the necessary solutions. On 11 December 2014 a follow up meeting was held to discuss the finer details of the solutions. IPID investigated criminal matters against SAPS and MPS and made recommendations with regard to disciplinary steps to be taken. SAPS and MPS must implement the recommendations of IPID within 30 days of receipt. The CSP was responsible to monitor the implementation of IPID recommendations and report to the Minister.

Mr Matthews Sesoko, CSP Chief Director: Corporate Services and Acting CFO, spoke to concerns and challenges which included data discrepancies, process flow of recommendations with different processes followed between SAPS in provinces, divisions and MPS, lack of effective communication, a lack of a common understanding of terminology in defining terms, e.g. initiating disciplinary process and there were challenges in the level of handling recommendations/level of interactions between SAPS and IPID. Challenges were experienced in responses from SAPS/MPS in terms of Section 30 (a), (b) and (c) of the IPID Act, timelines with the late submissions of documents/ recommendations reports, delays in addressing backlogs, inconsistent sanctions in disciplinary process and it had been noted that Section 30 of the IPID Act did not provide for MPS.

Some of the remedies/solutions, in terms of data discrepancies, included:
- Uniform reporting in terms of statistical information;
- Standardised reporting template;
- Statistics Reconciliation meetings;
- Monthly Quality Assurance Process;
- Consultation with Stats SA.

- Different processes were followed for flow of Recommendations in SAPS provinces, divisions and MPS
Remedy: Develop a Process Flow on the management of IPID Recommendations

-Lack of effective Communication: Remedies
Draft terms of reference for the Monthly Recommendation Meetings for all role players
Review of memorandum of understanding
Regular (monthly) meetings between SAPS, IPID, CSP and MPS

-Lack of Common Understanding of terminology in defining of terminology:
Consensus was reached at the Workshop held on 26 November 2014 as to how initiation will be dealt with. Initiation would begin on receipt of IPID recommendation. SAPS/MPS must indicate the manner of initiation within 30 days, for example by the SAPS/MPS applying his/her mind and make a decision in compliance with SAPS/MPS prescripts and indicate the manner of initiation which included: progressive discipline (in terms of SAPS Regulation 8-11), suspension of SAPS Regulation 13 and appoint of an investigating officer (I/O) as per SAPS Regulation 12 functionaries. If no disciplinary steps were to be taken, a comprehensive report was to be given to IPID. Supporting documents in terms Sec 30 (a) of the IPID Act must be sent to IPID as proof of initiation.

- Level for handling recommendations and the level of interactions between SAPS and IPID
SAPS and IPID had protocols in place as to who was dealing with the recommendations, SAPS was reviewing the level of coordinators, IPID coordinators were on Deputy Director level and there were regular monthly meetings between SAPS, IPID, CSP and MPS.

- Responses from SAPS/MPS in terms of Section 30 (a), (b) and (c) of the IPID Act:
There was a common reporting template in place to address information required
There was an agreement that MPS will now comply with Section 30 of the IPID Act, pending the review of the IPID Act.

- Late submissions of documents/ recommendations/ reports:
IPID and SAPS/MPS agreeing to new timelines that was to accommodate both departments in order to meet respective timelines.

- Delays in addressing backlogs in SAPS/MPS responses
Priority given to backlog cases and it was anticipated that they will be dealt with by September 2015
Provincial visits will be embarked on to ensure backlogs were addressed

- Inconsistent sanctions in disciplinary cases:
SAPS sanctioning guideline

- Section 30 of the IPID Act did not provide for MPS
There was now agreement that MPS will now comply with Section 30 of the IPID Act, pending the review of the IPID Act.  

Way forward
This included monthly meetings with stakeholders used as a basis to strengthen compliance and implementation of IPID recommendations and the evaluation of remedies and solutions, joint planning meetings will continue on an annual basis between all stakeholders and the implementation of IPID recommendations would be cascaded by all stakeholders in terms of APPs, SDIPs etc. Issues pertaining to IPID recommendations will be regularly discussed at the Consultative Forum meetings, further engagement with the MPS at the next MPS Forum was to conclude the Process Flow for each MPS, as they had different processes, IPID recommendations became a standard item at all Management Fora of all stakeholders and was to be included in performance agreements of all the managers concerned.

The Chairperson commended all the institutions involved on the good progress made. This established an excellent framework for moving forward. He wanted to know how corruption could be fought from the metro level. In the Ferguson matter in the USA, there was a big debate on how to best oversee police actions through making use of technology. Were the metros in SA moving toward body cameras because this would contribute toward combating the unsolicited conduction of bribes which was endemic in the urban metros? If the matter of systemic corruption was not dealt with, headway would not be made so what was being done proactively across policing.

Mr Robert McBride, IPID Executive Director, explained a problem with municipalities was the tendency of elected representatives to link the budget of police to revenue collected such as fines. The problem was how to measure success of law enforcement effectiveness – was it more fines or less fines? Revenue generation was not the job of police and there needed to be a delink. He experienced that police were then held ransom where if they did not collect x amount of fines, the budget would be decreased by the amount not collected. This was a key and fundamental conceptual problem. IPID would support all measures including technology to improve and enhance the fight against corruption and to leave no space for corruption to exist. The technology included body cams, microphones in vehicles etc to all give an idea of what was occurring.  

Mr Wayne Le Roux, City of Cape Town Metro Police Chief, added the City had invested in in-car cameras to assist in normal patrolling matters. Body cameras would be useful in the event of complaints from the public.  He was in support of investing in modern technology to assist officers in patrolling and to ensure there were no problems out on the road.

Mr Johan Friedlander, Ekurhuleni Metro Police Department (EMPD) Deputy Chief of Police, added that the EMPD was in the process of procuring four video and audio devices on a trial basis to be used in vehicles. In the meantime, there was real time tracking of all vehicles where they were 'parametered' and tracked at all times.

Ms A Molebatsi (ANC) asked if the screening of entry level MPS members were properly done. She asked this because of the manner in which the corruption crept in and she wondered if this was because of how the screening was done. She noticed nothing had been mentioned on how backlogs would be dealt with even though it was repeatedly mentioned.

Mr McBride repeated there was pressure on police in municipalities to be used as employment agents – this was a problem. Standards needed to be improved as there was reason why becoming a police officer was the go-to job after everything else had failed. 

Mr Le Roux added when an individual applied to become a metro police officer, random criminal checks were conducted. During appointment random checks were also done to see to pick up on any criminal matters. Importantly, lifestyle audits were also carried out. The City of Cape Town had a zero tolerance when it came to corruption and if anything was brought to attention, action was started immediately with the member in question being suspended or s/he was taken off the road until the investigation was completed.

Mr Friedlander said the EMPD took a decision where corruption would be a dismissible offence for it to be rooted out in any form whatsoever.

Mr Steve Ngubeni, Tshwane Metro Police Chief, said the issue of corruption was of concern to all hence he assured Members the metro chiefs, through the chief’s forum, were deliberating on the matter with initiatives in place. The major obstacles were budgetary constraints but there was positivity in reported cases – the more members of the public were encouraged to report corruption meant action could be taken to deal with the problem. With regards to screening, it was a fact that nobody got recruited in the policing environment without undergoing serious screening process and he believed there was evidence to this effect. It was important to remember members behaved differently before being recruited and once inside the service hence continuous monitoring and random checks were important.

Mr Twala thought the good work of the structures needed to be acknowledged as the Committee could be very hard on them. He was extremely appreciative of the work done.

Mr Z Mbhele (DA) echoed the sentiments of the encouragement of seeing improvements in liaison between the agencies. He was concerned about the core issue of the nature and strength of accountability in implementing these processes – section 30 of the IPID Act. He was particularly concerned about the appointment of an I/O from within SAPS and the comprehensive report to be compiled when no disciplinary steps were taken and if these actions diluted accountability or opened an escape valve. He raised the point that SAPS reinvestigated cases in many instances and appointment of an I/O being seen as initiating disciplinary proceedings. This was completely unacceptable and diluted the entire point of accountability and the teeth IPID had as a police watchdog. There was a difference between the job of IPID, to investigate and gather evidence to tests claims, and beginning disciplinary proceedings by SAPS to allow the accused to make representation – had the stance on this since changed? If SAPS was reinvestigating, this essentially wiped the slate clean and made IPID’s investigative powers redundant in allowing an entirely different base of evidence to be gathered which would obviously lead to a different outcome. This was not what the legislation intended when IPID was given teeth and accountability strengthened. He was very concerned about this. Was someone thinking about this? If not, this was quite possibly open to a court challenge.

Mr McBride indicated he was concerned about the appointment of I/Os and he had raised the matter with IPID. It had been experienced that IPID investigations were completed, recommendations were then handed over then the police re-investigated and came to a different conclusion. The fundamental principle of accountability was that the police could not investigate itself – this was why IPID was an independent body. He made it clear that I/O did not mean reinvestigation in this case.

Ms Mmola (ANC) asked what caused the backlogs. She thanked the agencies for a good presentation.  

Mr Sesoko explained that backlogs referred to the recommendations already made by IPID which had not been responded to by SAPS. This was highlighted in the engagements between the agencies and there was an undertaking by SAPS to clear the backlogs by the end of September.  IPID had already seen movement in this regard which was encouraging. The meetings would continue to push for the backlogs to be dealt with.

Mr L Ramatlkane (ANC) sought an explanation on the process of acting on IPID recommendations and whether there were any other investigations involved in terms of SAPS disciplinary processes. He was concerned about contradictory points highlighted in the presentation which gave the impression of an escape clause. He noticed the emphasis on section 30 of the IPID Act and the omission of the MPS – municipal police formed part of integrated policing and security and the omission did not mean MPS were immune from compliance. He was interested to know who attended the meetings and forums to ascertain at which level there was a commitment of attendance – it was good to have these fora but the actual decision-makers needed to be involved. What was the idea behind the uniformity and standardisation of sanctions? Integrated policing in SA was critical and for this, the efforts needed to be complimented.

Mr McBride said long-term uniformity of disciplinary sanctions was crucial as there could not be two different standards of disciplinary for police in one country. The police had a distinct disciplinary regime in the civil service because it had a lot more power including stop and search, demanding an ID, arrest and use of force. No one else had his power and it needed to be controlled and held accountable at a higher level compared to other public workers. Presently, for MPS, the level of accountability was the same as with other public workers. This difference was unsustainable and the Committee’s help was needed on the matter.

Mr Sesoko explained that with the process. After IPID had investigated and sent the findings to SAPS, on receipt of receiving the recommendations SAPS would initiate the process within 30 days and would provide IPID with proof of initiation for each specific case. The SAPS Act made provision where in cases of serious misconduct, SAPS was to appoint and I/O, or “disciplinary officer” as called in regulation 8, to initiate the process. This I/O would use the evidence gathered by IPID as a basis to compile a report and proceed with disciplinary initiation. If SAPS had any concerns regarding IPID recommendations, before any action was taken, there would be engagement between the two which might lead to a review of the original recommendation. If IPID was not in agreement, disciplinary action was to proceed.  

Mr Luyanda Qhomfo of the CSP explained there were monthly meetings between SAPS, CSP and IPID with employees of senior positions in attendance including deputy directors up to chief director level. This had also been cascaded down to provincial level – the problem at this level was to ensure senior officials attended particularly from the side of the SAPS. SAPS were busy dealing with this issue.

Mr Eugene Zama, Durban Metropolitian Police Service (DMPS) Chief Director, explained that metros were formed in the early 2000s and there were many gaps left in the IPID Act hence the chiefs decided to have a forum with SAPS to interlink some of the particular gaps. The point at this forum was to include the, then, Independent Complaints Directorate (ICD, now IPID). It was very difficult to work because the Act was not on the side of the metros. There was also an issue with the labour laws where the metros had a different bargaining council using the SA Local Government Association (SALGA).   

Mr Friedlander added that because of the delegated powers to the labour relations department, with disciplinary matters, the metro needed to send disciplinary findings to this department. With the SALGA, the time frame was three months and many cases fell off the table because the labour department not complying with this deadline. Added to this was the labour department not seeing the offences in the same light as the metro did.  

Ms Mabija (ANC) noted the presentation was clear, good in black and white and she had faith the remedies would be implemented as expected. Her experience was that there were very good presentations but the implementation was very weak and not satisfactory.

Mr Groenewald asked if there would be amendment to the IPID Act stemming from the section 30 review. When would this occur? This year?

Mr Sesoko indicated IPID had already started an internal process on the review of the regulations and the IPID Act itself. It was anticipated the Minister and Committee be approached in the coming financial year.  

The Chairperson indicated IPID was coming before the Committee to discuss legislation on 18 February.

Ms Kohler Barnard asked what would happen if a police officer killed someone and IPID investigated and sent its recommendations to the National Prosecuting Authority (NPA). What if SAPS then wanted the recommendations changed? Would SAPS have a say in the outcome of such case seeing as the NPA was involved?

Mr Sesoko said disciplinary and criminal process were distinct although ran parallel. SAPS were not involved in criminal processes. IPID would refer its conclusions to the Director of Public Prosecutions who would decide whether to prosecute or not. Recommendations would then be sent to SAPS with regard to discipline. Invariably, disciplinary recommendations would flow from criminal prosecution. In other cases, IPID might decide there should be no criminal prosecution but recommend disciplinary processes.   

 Mr Ramatlakane had a problem with the review of IPID recommendations by SAPS because it opened the process up to problems. This actually went against the IPID Act as it stood. He was also concerned about decision-makers being present at the consultative meetings for personnel of similar ranking to be in attendance among the agencies.

Mr Sesoko stated robust engagement on the issue was held because of previous experience to say the Act was very clear in this regard. IPID investigated before recommendations were made and if SAPS had an issue with the recommendations engagement could be held. 

Ms Molebatsi asked if the MPS had a checking device for vehicles to track its movements – this could help with corruption. She noted the City of Cape Town was the only metro which did not attend the first responder training for public order policing and asked why this was.

Mr Zama said vehicle tracking was helpful but, unfortunately, members were not always in the vehicles as they were on foot patrol. Looking at the body of an individual through monitoring was important but there were issues to look at first like what the unions would say.

Mr Le Roux agreed that all the vehicles of the City of Cape Town were fitted with trackers which were used for disciplinary cases or if a member was involved in an accident. Modern technology was important for day to day operations. With the crowd management training, the City was concerned from a legal point. He engaged the National Commissioner on these points and voiced his concerns. The City supported joint initiatives because policing could not happen in isolation but when it came to crowd management there were concerns around the level of demand and control as well as financial implications for equipment, vehicles and protecting officers. Close to a couple of hundred officers would need to be sent up to Pretoria for the training and this was a concern. The City supported the training in principle but there were concerns.

Ms Molebatsi was not happy with this answer. She could not understand why only Cape Town did not attend when other cities could also have had concerns yet still complied by attending the training.

Mr Mbhele noted that the presentation stated “IPID and SAPS/MPS agreed to new timelines that was to accommodate both departments in order to meet respective timelines” and asked what this was in specific reference to as he was a stickler for compliance. He was concerned that these timeframes were not in conflict with the IPID Act section 30 stipulated deadlines.

Ms M Geerdts, IPID Acting Chief Director: Compliance Monitoring and Stakeholder Management, because there were so many different timelines in terms of legislation for the different agencies to comply with, it was decided best that IPID submit recommendations to SAPS a little bit earlier in the month in order to allow the Service to complete administrative duties and update records. This was an internal arrangement to ensure compliance in terms of legislative deadlines.

Mr Maake remembered when the metro police were just established and how happy he was with the work they were carrying out. Seemingly now, this was a different metro police all together – what went wrong? Discipline within the police needed to be done internally but there also needed to be help for the side of the civilians not to bride the police. It was engrained in society to pay a bride of R50 rather than a fine of R2800 for speeding, for example. Police needed to know not to take bribes as this behaviour would not stop from the side of the civilians.

Ms Kohler Barnard was very interested in the idea of cameras on cars and uniforms – it was something introduced very successfully in other countries and reduced police brutality massively. She was pleased to hear it was being carried out in the City of Cape Town. Was there some regular coordinated meeting between the head of the metros to compare best practice, challenges and successes from province to province? Were such meetings fruitful? 

Mr Zama said the chiefs of metros had standing meetings with IPID and SAPS along with other activities between the metros.

Ms Fourie added there was a platform for Heads of Department to share best practice.   

Mr Mbhele commented on MPS being excluded from section 30 of the IPID Act and that MECs were designated as being the oversight authority. He thought the exclusion of the MPS from the IPID Act was useful because, generally, the functions of MPS, as mandated in statutes, would not put these metro officers in the kind of coercive situations which made them vulnerable and in contravention of section 28. Was there a clear understanding that the MPS primary function was by-law enforcement and traffic enforcement etc. He would hate the MPS to be admonished for taking on responsibilities in terms of public order policing and crowd management – it was important to always maintain clarity within all those agencies involved in the policing environment around jurisdictions, primary mandates and accountability. 

Mr McBride corrected the Member that both SAP and MPS were born out of SAPS Act and the reason for the development of the MPS was because of force multipliers and that the metro police were the first respondents. The SAPS Act stated the MPS had three functions which were provided for in the Act, namely, (1) crime prevention, (2) traffic law enforcement and (3) by-law enforcement. Together with regulations and national standards empowering the MPS could actually stop vehicles including ships and aeroplanes if they suspected drugs. So, the concept of MPS was not “policing lite” because metro officers were not shot at any less than SAPS officers. Stopping vehicles was dangerous – all forms of violent crime required a vehicle whether to covey weapons, drugs or to transport people away from a crime scene. The metro police dealt with taxis and their roadworthiness and were involved in policing taxi violence. The MPS faced exactly the same dangerous as SAPS hence from the side of IPID, there would always be a push for uniform training standards and capabilities. In essence, MPS officers were police officers without the power to investigate crimes however for accidents, MPS carried out accident investigations.  

Mr Sesoko added with the IPID Act, the only section that did not mention the MPS was 30. When going through the Act, all referrals to SAPS included the MPS. He believed section 30 omitting the MPS was a drafting error.

Mr Ramatlakane thought the question of the primary responsibilities of MPS required a longer conversation. He understood that metro police were created not to simply become traffic officers but was broader to actually deal with crime prevention centrally which also explained the shift in training, ranking and scope. The MPS was a complimentary police service situated in the metros. MPS would also have to be trained in the same way SAPS officers were to ensure an integrated service. 

The Chairperson provided some closing comments noting that most of the issues raised were contained in the National Development Plan (NDP) and going forward, plans needed to be tested against the NDP. It was critical to stick to the timeframes and as raised by a Member, presentations were created very nicely but their sustainability was the critical matter. The various forums were critical for follow through and the Committee would closely monitor the September deadline. With legislation, IPID would come before the Committee in February but it was also important to engage SALGA on some of the issues raised today. A single police service for the country was a critical issue to be addressed. The Committee already raised concerns about SAPS sending junior officers when it came to dealing with recommendations – there needed to be appropriate representation if the process were to be successfully. The Committee would monitor this and if there were any problems, it should be brought to the Committee to be dealt with. 

The meeting was adjourned.

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