The Department of Transport had been asked to return to this meeting to answer all the questions asked by Members in a previous meeting. Officials from the Road Traffic Infringement Agency (RTIA) and the Department of Transport (DOT) provided the feedback.
A Member had asked about the difference between the National Register for Traffic Offences and the new National Contraventions Register (NCR), and were told that the NCR was intended to be broader and the change of name, whilst largely technical, did take the broadened scope into account as it allowed for inclusion of offences after the court processes. It was clarified that the NCR had been used in the pilot project in Gauteng. Several Members questioned what would happen in the case of foreign drivers infringing the law, and the Department clarified that although at present some details were captured on the system, it was not comprehensive and this did not allow for recovery. In future it was hoped to be able to deal with all matters at the border posts, and this was one of the reasons why the system was created to be compatible with systems of other departments at the borders, such as the Departments of Police, Finance and Home Affairs, although this had not yet happened. In answer to questions about rehabilitation provisions for infringers, the Department indicated that authorised service providers would be asked to coordinate programmes and to test their effectiveness and compliance, with the RTIA picking up 10% of the cost, and the infringers 90%. Administrative actions requested by the infringer would not come at a cost. Members had asked for an explanation of how penalties would be fixed across the different classes of drivers, owners and operators, and how demerit points would be allocated. Throughout the presentation the DOT emphasised that the purpose behind the Bill was to encourage better road safety through increased compliance and that the provisions were essentially aimed at changing driver behaviour. One Member had asked what the DOT was intending to do to ease the problems experienced by students who were fined continuously because there was insufficient parking available for them near the campus, but the DOT responded that this was an issue that lay within the responsibility of local authorities; however, the DOT would ensure that parking infringements would not constitute demerit points. Members had asked why there had not been comment on section 21 and it was explained that this was to be removed. There were concerns from a number of Members about insufficient consultations, particularly with the taxi industry, but the Department assured Members that ample opportunity had been given for comment and that the comments received both during and after the stipulated period for comment had been incorporated.
Several Members also raised their concerns about the constitutionality of the Bill, and said that they foresaw challenges from several interested parties who had already indicated that they did not believe the Bill to be constitutionally compliant. The Department responded that it had taken legal advice both internally and from the Office of the Chief State Law Adviser and was satisfied that it would pass constitutional muster. Similarly, it was happy that the provisions around electronic service were also sound and pointed to other legislation where this had already been tested. The State Legal Adviser and Departmental Legal advisers had been consulted throughout. Other common concerns were whether enough public engagement had taken place and whether the roadshows on the Bill were sufficient. Members had also been expecting a full briefing from those responsible for running the pilot projects but the Department explained that since the feedback had already been incorporated into the current version of the Bill, it was not sure that this was necessary.
After the answers to previous questions had been given, Members were still not happy and thought that the answers given were not clear enough to close off the issues, and did not do justice to the complexity of the questions, and the socio-economic impact and assessment studies were not properly explained. Members made the point that the system looked good on paper but they did not feel that the practical implications had been fully explored and they were not happy about the costing or assurances on the state of readiness to implement the system country-wide, pointing out that the pilot projects were limited to large towns and an urban setting, and Members still had many questions that remained unanswered about the pilot studies themselves, and their ability to manage and detect fraud. Members were also still not happy with the explanation on the interface and questioned why the DOT was seeking outside service providers instead of looking internally to find the right people. On the policy, they were not sure that the penalties alone would result in any substantial changes to driver behaviour and they felt that it would be foolish to press ahead with the system without firstly finding out if the local authorities had the capacity to implement, and if the system would actually work, as well as questioning where exactly the DOT intended to source the money to pay the service providers. The DOT responded that lessons had been learnt from the pilots, and the DOT still believed that the amendments would result in significant drops in road fatalities and accidents, thus saving money across the rest of government, and that this end was one of the duties cast upon government. The DOT emphasised also that the procedures tested in the pilot were not actually new, but were an improved form of implementation of what had been essentially in place for some time, and it was hoped that this Bill would result in standardisation. The functionalities of the system had been pared down to make it more effective and although it was conceded that the DOT would still have to return to explain other matters, it felt that the system was workable and would achieve substantial efficiencies as well as making it easier for citizens to comply with the law. Some questions again stood over for written responses.
Administration Adjudication of Road Traffic Offences Act (AARTO) Amendment Bill: B 38-2015: Department of Transport responses to questions raised in previous meeting
The Chairperson noted apologies from the Minister and Deputy Minister of Transport and noted apologies also from some Members. She emphasised that the Committee had some strict time limits and requested the Department of Transport (DOT or the Department) to be succinct in giving responses to questions that had been raised at a previous meeting.
Mr Japh Chuwe, Registrar, Road Traffic Infringement Agency, introduced Mr John Motsatsing, Director, Department of Transport, who would assist him in responding to questions.
Mr C Hunsinger (ANC) had asked for the difference between the National Contraventions Register (NCR) and the new National Offences Register (NOR) and which of these had been used during the pilot project that had been implemented in Gauteng. Mr Hunsinger had also expressed concern about the status of the NCR to be implemented. Mr Hunsinger further questioned what would happen in the case of infringers who did not live in South Africa. He had suggested that there was a need for further consideration to be given to the Regulatory Impact Assessment. Finally, he had questioned how viable the NCR system was and how it integrated with other systems.
Mr Motsatsing responded that the NCR was used for the pilot project in Gauteng, but only to the extent that its functionalities helped to capture the infringements and trangressions in the AARTO. He noted that the main problem with a driver who was licensed in another country was that the license or car registration might be recognised in the system, but not the details. In future, the AARTO envisaged that all details would be captured. Speaking to the Regulatory Impact Assessment, he said the Office of the Presidency had already initiated a study into this piece of legislation and the procedural requirements. He added that the NCR would inter-connect with local and municipal authorities and systems, and it would be compliant with other systems at national level also.
Mr M De Freitas (DA) had asked about the relationship between the NCR and systems used at border posts, and more specifically how the border management processes interfaced with other systems for traffic and movement. He had also asked what would be done to monitor rehabilitation and who would cover the costs of the rehabilitation programmes. He had also inquired about the demerit point, whether it would link to all motor vehicles dealt with under the current legislation. He also asked what the DOT saw as the most critical points that would make the new legislation succeed.
Mr Motsatsing answered that currently there was no interface between the systems at border posts manned by officials from Departments of Home Affairs, SA Revenue Services (SARS) and South African Police Services (SAPS) and the Department of Transport, although the Department was currently developing this system. This, he argued, would be mutually beneficial for the other departments involved as they will be able to access to the information provided to the Department of Transport through the new bill. He noted that authorised service providers will coordinate the rehabilitation programmes and evaluate their effectiveness and levels of compliance. The RTIA will cover 10% of infringement costs and the infringer will be responsible for the remaining 90%. He also explained that different parts of the Bill dealt with drivers, owners and operators and their responsibilities so the Department would have to ensure that demerit points were allocated correctly, separating out what exactly each infringement entailed. He stressed that the Act was specifically focused upon and therefore dependent for its success upon changing the behaviour of drivers and their attitude to compliance with the law.
Mr J Maswanganyi (ANC) had asked for comment on the severity of the penalties under AARTO, the costs of initiating Court actions and the possibility of designing a more effective and less costly reviewing mechanism. Mr Maswanganyi had also asked the Department about the potential duplication of penalties for infringers. He asked why none of the people responsible for the pilot study had come to the Committee to explain the system and their conclusions, as he said that the Committee needed to know the results of the pilots. He expressed concerns about the effect of the illegal parking sanctions that were imposed upon students.
Mr Motsatsing said that the purpose of the penalties and demerit points was to change behaviour and to deter infringers from infringing again. The rehabilitation process was intended to be a corrective measures for infringers to deal with those whose licenses had been suspended. AARTO did intend to ensure that the legislation was not only about generating revenue, but also about changing driving behaviour. He noted that during the review of the pilot project the authorities had attended to correcting issues around the assessments and had specifically advised RTIA about issues of concern. Authorities from both Johannesburg and Tshwane were able to make contributions that were fed into the current draft of the Bill, through the South African Local Government Association (SALGA) and so it was for this reason that the DOT did not think that it was necessary to have them come to the Committee to give a separate presentation.
He added that additional lessons from the pilot project had been shared with authorities through the AARTO National Task Team and they were also discussed with the Committee during the session of 20 May 2016. He noted that parking planning issues and the effect of the parking restrictions on students were something that the local authorities and not the RTIA handled; it was within the local mandate to ensure that sufficient parking spaces were available and to try to ameliorate the impact of restrictions on the student community. However, the RTIA had already drafted some amendments to the Regulations under the RTIA to ensure that parking offences would not cause anyone to have demerit points.
Mr G Radebe (ANC) had asked about the credibility of electronic mailing systems; the potential recourse in situations when people refused to give information, and he had also raised the possibility of “politicking” around the AARTO Amendment Bill.
Mr Motsatsing noted that the credibility of electronic mailing systems was now covered in many pieces of legislation, was specifically dealt with in the Electronic Communications and Transactions Act (ECTA) and was also now covered in rule 4A of the High Court Rules. He said that it would be mandatory for people to provide certain information and in terms of Regulation 32A of the National Road Traffic Act regulations, a person would have to provide correct contact details on the eNatis system. He assure Mr Radebe that there was no politicking involved in this Bill or in the development of the legislation. The focus was on the change of behaviour and reduction of lawlessness, so that too was the expected outcome of the Bill.
Mr M Sibande (ANC) had inquired about the lack of extensive comments on section 21 of the Act, and he had asked similar questions to other Members about the linkages of the NCR to the systems of Department of Home Affairs, particularly at the border posts. He expressed concern that there had been no further consultation with the taxi associations prior to the Bill being presented to Parliament. He had also requested more information about what systems had been set up to monitor rehabilitation programmes. He asked what role the RTIA would play in dealing with infringers who elected to take the matter to courts.
Mr Motsatsing said that the reasons behind the removal of section 21 of the Act related to the potential socio economic effects and public costs of immobilising vehicles. In regard to the systems he reiterated that the intention was that all the information would be obtainable by the departments through good linkages and that would also help to track foreign nationals who entered the country. In regard to the taxi association comments he noted that DOT had held various meetings with different stakeholders and taxi leadership was present both during the main period for comment, and at meetings after the extension period that had been specifically given. Space had been given to concerns raised with the DOT during the policy drafting period, given the importance of getting as much input as possible from the public. However, whilst the taxi industry concerns were considered, the policy should not lose sight of, or move away from the objectives it wants to achieve. In order to address the monitoring and evaluation of rehabilitation programmes, the Department will contract with service providers to ensure that the policy does achieve what is expected. He noted that the DOT was open to any proposals that would help in alleviating the problems around or prevalence of elections to go to court. Amendments about the review tribunal had been incorporated in the amendments.
Mr L Ramatlakane (ANC) had raised questions around the constitutionality of the current amendments. There were several questions by stakeholders about demerit points, and he wanted more information on this. Mr Ramatlakane also made the point that the Committee was still waiting for a presentation on the pilot project. He asked about the different categories of infringements that were provided for in the Bill, and the definition of “foreign drivers” and how they would be dealt with. He asked what issues specifically in the AARTO required amendment and whether the scope of consultations could be broadened. He asked about the costs of administrative actions by the RTIA.
Mr Motsatsing said that the constitutionality of the entire AARTO Act was revised by two leading Senior Counsel in 2011 and the rest of the policy choices made had been largely influenced by the recommendations that were received. He informed the Committee that the Bill's process included a full review and assessment from the Office of the Chief State Law Adviser and Departmental legal advisers. He noted that the fears by stakeholders were based on perceptions rather than fact. It could not be expected that the implementation of the Act or the content of the Bill would please everyone. Again, he wanted to stress that the intention behind the Bill was to achieve social changes. He reminded the Committee that a report on the pilot phase had been shared with the Committee on 20 May 2016 and a report was also presented to NEDLAC. The RTIA was still considering and finalising proposals for the special sanctions that could be imposed on and collected from foreign infringers. He reminded Members that Schedule 3 of the AARTO Regulations set out a categorisation of infringements. The definition of “foreign driver” had not been dealt with in the current Amendment Bill, although he agreed that it might be an ideal time to do so, and then to incorporate this as part of the amendments, due to the positive ramifications of that inclusion. The Department was of the view that there were still many provisions still not included in the current proposals so that it was likely that the Bill would require still further amendments. In the present consultation process, it would still be possible to do this. Consultations at NEDLAC, DEVCOM, the Justice Cluster, Forum for South African Directors General and the Cabinet Cluster were completed and included in June 2015. He said that there would not be any costs related to administrative actions requested by the infringer. There were currently no provisions around foreign drivers, but the Department intended to work within the existing legislative framework to be able to track foreign infringers at the border post.
Ms S Xego (ANC) had also been concerned with the apparent lack of discussion with taxi associations. She stressed the need to establish a central database around individuals. She had asked for an explanation of the difference between mail and secure mail. She asked about the possibility of extending the consultation process.
Mr Motsatsing repeated that the Department and RTIA had consulted quite extensively with the taxi industry, as previously mentioned, even after the designated period for comment and the extension of that period. There was a proposal for a central database to be managed privately but this could only be put into operation when the procurement processes had been carried out under the Protection of Personal Information Act (POPI) and Regulation 32A. He explained that mailing and secure mailing followed the same basic route but where they differed was that secure mailing tracking would track the mail sent until the moment of delivery.
Mr T Mulaudzi (EFF) had enquired whether road shows were conducted to rural areas. He had also asked what constitutional expertise had been used to consider the policy. He wondered if the AARTO was to be expanded to provincial and local authorities, and he too had asked if those running the pilot sites would be invited to come and brief the Committee.
Mr Motsatsing said that the RTIA already conducted road shows at all levels and it was currently running workshops with issuing authorities around the country, to ensure that there was a proper understanding of the policy. He said that the AARTO had been considered and certified as constitutionally sound, by legal advisers. He added that it was one of the goals of RTIA to expand its capacity around the country through women and youth owned enterprises, as well as by setting up clustered provincial offices. He repeated that the pilot site report had been sent to the Committee in May 2016.
Mr Chuwe suggested that Members might like to raise any particular concerns. Some of the key points that it was said had not been detailed during the presentation included the possible excessive power given to the RTIA. There were issues around the constitutionality and administrative issues in the Bill, rehabilitation programmes. The DOT was willing to explain and expand upon any of the issues.
Mr Maswanganyi said that he was not happy with the approach taken by Mr Chuwe. In the previous meeting it was agreed that Members would be given time for further consideration of the issues and after the questions had been asked, the Department itself should have provided further clarity to close off the concerns. He thought that Mr Chuwe was out of order as he seemed to be trying to run a question and answer session, which was actually the function and role of the Chairperson.
The Chairperson agreed with Mr Maswanganyi that the purpose of this presentation was to address and conclude Members’ concerns as raised previously. There should not be further questions as the Department should have covered everything. Questions could be raised on further concerns.
Mr Radebe suggested that it may be useful to allow 30 minutes for follow up questions by Members.
Mr Hunsinger said that he was disappointed in the answers given. The questions by Members had been profound and complex and he did not feel that the answers did justice to them. He said, for instance, that his question on the actual difference between the NOR and NCR had not been explained. If, as the Department suggested, they were the same, then he questioned what prompted the Department to make changes at all. He wanted to know if the change was one of name only, or if there would also be changes to procedures. He wanted to get more insight on the socio economic Impact Assessment criteria within the Regulatory Impact Assessment. He asked specifically what were its implications, especially for local Government, because even when there is support for the creation of the system, it was necessary to consider the financial costs. He would like to have received a full copy of the whole Assessment report, as well as the Certificate that was attached to the Bill. He also wanted to raise further questions on the execution and implementation of the pilot projects. It seemed that it would be difficult to achieve consistency across the country. In terms of efficiency, AARTO had been under development, with continuous reference to changing legislation both from 2008 and 2012. This raised questions as to whether the RTIA and AARTO were indeed ready to achieve the desired goals. He referred to the functionalities of AARTO as specified, and asked for specific feedback on the success or otherwise of these functionalities as experienced in the pilot projects in Johannesburg and Tshwane. He still had some serious concerns around the pilot project management system, particularly in terms of its effectiveness and efficiency, and said that it did not seem to be capable of managing fraudulent transactions.
Mr De Freitas addressed his continuing concerns around the interface and his fears about the difficulty in finding appropriate service providers for the evaluation of rehabilitation programmes. He expressed concern that the system did appear to have been looked at in isolation. He argued that penalties alone did not change driver behaviour and he did not think that the Bill would achieve its objectives. In regard to the pilot projects, he agreed with Mr Hunsinger that the Committee needed to get a detailed report on the pilot projects. He thought also that the DOT would have to do another study into the financial constraints facing each of the local authorities and whether they would be capable of providing for immediate payment facilities, or indeed investing in the required devices, and that it would also be foolish to invest in these devices before confirming that the system would actually work. Johannesburg and Tshwane were two instances, but the other provinces simply would not have the money, in his view, to run similar projects. He also thought that the information campaign carried out by the DOT had been insufficient, because there was too large a percentage of drivers and vehicles that had not been reached.
Mr M Maswanganyi mentioned that there was a need to get further public participation, in terms of Parliament's own procedures. Those who would be affected by the implementation of the Bill should be given the opportunity to raise their voice and get involved in the decision-making process. Inputs from any form of engagement or involvement should be taken into account by the legislature, and there were concerns about lack of consideration given by the Department to concerns raised by the public. He agreed in principle with the objectives behind the Bill, but as a representative for the public he wanted to stress that the concerns of all stakeholders had to be fully considered and their requests accommodated where possible. He would disagree entirely with cancelling car licenses, although he conceded that there was some merit in cancelling licences for individuals and he wanted further explanations on what exactly was proposed here. He also stressed that the DOT should not be getting involved with other departments’ responsibilities and mandates. He asked where the Department would get the financial resources to cover the service providers mentioned. The system appeared simple on paper but he had doubts about its feasibility and whether it would be possible to put it into practice.
Mr Sibande asked the Department to clarify whether the model that it intended to implement has been tested in other countries, and, if so, how efficient it was. He suggested that the proposals and the “lived experience” were quite different, given the current structures and service supply.
Mr Radebe raised concerns that although the Committee had been assured about the constitutionality of the Bill, there were no specific references or arguments presented. There were many parties and stakeholders and AARTO would have a great impact, and it must be expected that many of the stakeholders would be raising their voices and quite clearly manifest any disagreements while the Bill was being drafted and debated. Mr Radebe expressed his disagreement on the topic of outsourcing of the services for the rehabilitation process, arguing that it would be an unnecessary additional cost.
The Chairperson said that government had its own skills but unfortunately there was a tendency for government not to look to its own systems instead of seeking services outside its own departments. She said that although the Committee had received presentations, further explanations over and above the documents would be required. She agreed fully with Mr Maswanganyi that engagement with stakeholders was essential. She gave clear examples of cases that required that there be a good understanding at local level before implementation. It would also be necessary to measure to what extent the sanctions may persuade users to now comply with the law; particularly the effect of demerit points leading to loss of a licence. She explained that although from a strictly legal standpoint the policy may be correct, there could be circumstances when compliance or access to information might become practically impossible, given the local realities of networks and systems.
Mr Chuwe thanked Members and quoted an African proverb to expand upon the policy: essentially it was possible that "the mistakes of death would open the eyes of the living”. He reiterated, to Mr Radebe, that the policy behind AARTO was to protect life by increasing road safety and the protection of life was mandated to government by the Constitution. The socio-economic impact of AARTO will translate into a significant amount of money, estimated a more than R300 billion. He would argue that government has the responsibility and the duty of providing he required infrastructure. Members should bear in mind that South African had the tenth best road infrastructure network across the world. Government was in control of permitting individuals to hold drivers licences but in order for citizens to enjoy this freedom citizens must comply with the law.
Mr Chuwe explained to Mr Hunsinger that the difference between the NOR and the NCR was essentially just in the name, but that name would actually allow for the broadening of the scope since the previous name had expressly limited this to traffic offences but the new process would allow for offences after the court process also to be included . Some aspects could not be dealt with by transport policy. He noted the requests by several Members to be provided with the Assessment Impact report. He explained that the procedures used in the pilot project in Johannesburg and Tshwane were not new, they simply bettered the practical implementation of the new operating mechanisms. In order to achieve a common operating process across provinces, the Department needed to be quite explicit in its regulations, to avoid the situation where different contracts and processes might be followed in different provinces. There was a need to standardize. By having common standards and procedures, it should be possible to avoid misuse of the systems, or to contain this as far as possible.
Mr Thabo Tsholetane, Chief Operations Officer, RTIA, pointed out that often, businesses that dealt with a great deal of data of citizens would not complete all the required paperwork, and expected the authorities to accept incomplete profiles. The standardisation process would avoid the situation where businesses might try to move their business from one district municipality to another if they were challenged at one branch.
Mr Chuwe elaborated on the impact of revenue and its consistency at the national level. The data would be verified by the Issuing Authority, and each municipal authority will have oversight and confirmation capacity over the different aspects for the requirements, for implementation. The provincial government will report to the national authorities.
He added that the functionalities of the system had been pared down to 20 from an initial number of 100 functionalities, for practical purposes. The system eventually put into operation would be fully available to all, and as far as possible there would be attempts to manage it effectively by managing certain logistical issues very carefully. The functionalities would enable those accessing it to update, and it would be broken down so that it would provide statistics on districts, licences, vehicles and operators. He said that there were many aspects that still needed more detailed explanations but he had tried to cover matters as best as the time constraints facing the Committee allowed.
[Some indistinct comments were made on issues related to the NCR].
Mr Chuwe dealt with Mr De Freitas' points on how the demerit system would work for vehicles. Penalties for infringements were supposed to be coordinated. In a case where the driver, the vehicle and the operator were all completely separate, the penalties would be imposed on the subject of the infringement – the driver. If a driver who did not own his own vehicle was driving an unlicensed car, both the owner and the driver could be sanctioned. If that same driver and vehicle were involved, but the vehicle was owned by a taxi company that was running its trade through an unlicensed vehicle, then driver, owner and taxi operator would all be sanctioned. In the case of a driver who was also the owner of his own car and that was involved in the infringement, only the highest penalty (in terms of demerit points) would be imposed.
He added that the categorisation and coordination of systems across provinces and borders was essential and it would also help to cut out the possibility of infringements being wrongly charged – for instance, a person who drives a motorbike being charged for not wearing a seat-belt.
Mr Chuwe added that the DOT intended to make it easier for people to comply. More payment platforms with different options would be created, to reduce the space for non compliance; for instance, people would be able to pay at the supermarket or other stores. When selecting the payment option, the infringer would instantly be able to see what other options were available to him or her in this case, as the options would be listed.
Mr Chuwe spoke to Mr De Freitas' concerns about the level and adequacy of infrastructures. He admitted that there had perhaps been some over excitement and expectations during the drafting process. He acknowledged also that expenditure was expected during the first stages of implementation.
In relation to Mr De Freitas' concern that issuing authorities would not look at the bigger picture of AARTO nor recognise its focus on compliance rather than revenue-generation, he said that the DOT, in partnership with SALGA, hoped to make local authorities understand that the policy’s main goal is law enforcement. Advisory services will be crucial, and would be offered from the DOT to the issuing authorities, to help them to identify infringements in a more detailed manner, as shown in the pilot report.
Mr Chuwe noted the concerns about not having an estimate of the cost of implementation, and explained that ultimately the only way of seeing the cost efficiency in implementing AARTO will be to see how quickly they system was able to pay for itself. The income received would obviously need to match the figures of the issuing authorities. After the 74th day after the infringement, the revenue could be registered. This would also take into account the discounts offered for early payment. He said that when the fines paid were shown to have resulted in a reduction in the numbers of accidents and deaths, the funding for the systems would be ring-fenced and would not be designated for any other causes. He predicted that the costs saved by reducing accidents would be visible and to the tune of millions of rands that were provided by the National Treasury to other departments who were presently responsible for compensation funding and hospitalisation.
Mr Tsholetane responded to concerns about the revenue generated by local authorities from payment of fines, saying that where AARTO had been properly implemented it was a direct result that local authorities did generate more revenue. However, this was largely achieved because there had been reallocation of responsibilities creating a more efficient system that reduced expenditure.
The Chairperson noted that the Committee was now facing time constraints and suggested that outstanding questions could be answered in writing.
The Department's legal advisers wanted to respond to one issue, whether the DOT had drawn on international experience. It noted that Canada and Sweden implemented similar models. Those had been taken into consideration when drafting the current Bill.
The Department's legal adviser also responded to concerns around the funding of the rehabilitation programmes. They aimed to give two options to the users which he explained.
The Chairperson again said that detailed written answers should be provided to the Committee. The next session would be a full-day session. The Bill would be formally deliberated upon and the Department would still need to report back on issues raised.
The meeting was adjourned.
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