15 Sep 2020
11 Mar 2020
Joint Rules 6th Edition : June 2011
The Committee resolved not to press charges of contempt of Parliament against Members of Parliament (MPs) who disrupted the Joint Sitting of Parliament during the State of the Nation Address on 13 February 2020. The meeting began by viewing the footage, receiving a briefing from Adv Ncumisa Mayosi on the legal issues relating to the incident and then deliberating on it. The Committee resolved not to continue identifying Members who may have been involved in the disruption of SONA and that the case for contempt had a less than reasonable prospect of success. The matter turned on the Speaker invoking Rule 14F which is more lenient compared to Rule 14G of the Joint Rules of Parliament which was not invoked.
A deficiency was identified in the Joint Rules of Parliament, especially as it relates to the repetition of points of order, and needs to be corrected. It is quite specific in the National Assembly Rules that once a point of order has been raised and dealt with, if a Member continues to raise that point of order, they will be contravening the rules.
On the objectionable conduct of the unidentified Member throwing a water bottle, the Chairperson would request the video production team to help identify that Member. The Committee would meet again on 24 November.
The meeting began with the Committee viewing the footage of the proceedings of the Joint Sitting to identify Members of Parliament who disrupted the February 2020 State of the Nation Address (SONA), as per the referral to the Committee by the Speaker of the National Assembly (NA).
The Chairperson commented that the last time the Committee deliberated on the matter, it seemed as if in the first instance former President FW De Klerk was being asked to leave the sitting, but that there was no issue there. The second issue was where there was a request for the Minister of Public Enterprises, Mr Pravin Gordhan, to leave and points of order were raised. There was a ruling by the Speaker at some point that Ms Sonti must leave the House and she refused to leave the House and that was not followed up. When Economic Freedom Fighters (EFF) MPs were leaving the house, there was the throwing of a bottle at the back. He could not pick up the last incident clearly. He asked the Members to deliberate on the incidents at SONA in general. After the Committee had identified the Members concerned, they are supposed to be charged because they have caused a disruption or have behaved in such a manner that their behaviour caused a disruption in the House and thus they are in contempt of Parliament.
He introduced Adv Ncumisa Mayosi and explained that she would be advising the Committee if any rules were broken by Members of Parliament during the SONA incident. She would provide her recommendations to assist the Committee in their deliberations.
Briefing by Adv Mayosi
Adv Ncumisa Mayosi began by stating her observations from the footage. It seems that how matters began is that in the first part of the SONA proceedings, the objections raised related to former President FW De Klerk being invited to attend the SONA joint sitting. Various objections were raised by Members of Parliament about this. She had counted the instances in which that particular objection was repeated. When it was raised for the first time, that Member of Parliament was allowed to speak. The Speaker then ruled that that submission would not be sustained for the reasons she gave. What followed thereafter was the repetition of the same submission under the guise of a point of order for approximately six times. On each occasion the point of order was raised, the Speaker would pronounce on what the Member had said and require the Member to sit down. It appears that this was the solution of choice by the presiding officers on that day.
On a reading of the Joint Rules of Parliament which, agreed to by all parties, were the rules that applied to the joint sitting, the rule that deals with irrelevance or repetition applies. The rule says that the presiding officer, after calling to attention the conduct of the Member who persists in irrelevance or repetition of argument, may direct the Member to discontinue his speech. What the Speaker did in this particular complaint was that each of the six times that Members spoke to the complaint initially raised, she ordered them to sit down. It appears that she was in fact invoking Rule 14F. On each occasion, the person sat down when ordered to do so. The presiding officer did not invoke Rule 14G or any of the other rules that they had at their disposal. That part of the proceedings then ended because various other Members spoke about the objection of their political parties to how things were proceeding.
The second series of complaints was in the main about the presence of the Minister of Public Enterprises, Mr Pravin Gordhan. Various Members repeated that. This was not the only item raised. A proposal was made by a Member that because there had not been a Chief Whips meeting the previous day, the session should be suspended so that the Chief Whips should caucus. Various people supported that and repeated that. The Speaker then ruled on both the Mr Pravin Gordhan and the Chief Whips issue and repetitions.
The third complaint was that one of the Members had threatened violence which was repeated by other Members. The Speaker then ruled on that.
There was a fourth complaint which was about which rule was the Speaker invoking when saying she will not take further points of order. This complaint was followed by repetitions in support of that. She ruled similarly, invoking Rule 14F each time, after ordering the Member to sit down.
The fifth complaint raised in this second part of the session was that the Speaker cannot order the Members to leave, they must be called by their names, individually. On that point it seems that there are two instances that the Speaker came close to invoking Rule 14G. In the first instance, Ms Mkhaliphi stood up and the Speaker said quite pointedly to that Member, that if she stood up, she must be prepared to leave, because the people who did not want to be there must leave.
Adv Mayosi said that she did not think it went any further after that, the Member did not pursue it. After Ms Sonti spoke, the Speaker specifically pointedly told her to leave the room, which appears to be the invocation under Rule 14G, after which the Member sat down. The proceedings continued but were then suspended, and they reconvened shortly after.
The Members then said they would leave Parliament if Mr Pravin Gordhan stayed in the room. They left and there was an apparent throwing of a bottle. The person from whom that projectile came, seems to be obscured in the footage that was viewed. It is visible that the bottle came from somewhere but the thrower of the bottle is not visible. That is definitely objectionable conduct. Adv Mayosi said that she was not sure how it will be dealt with, without being able to identify the individual from whom it came.
In the second group of complaints, what seemed to be happening was that a Member would raise an issue, it would be repeated several times, it would be ruled upon but repeated and each time, the presiding officer’s chosen way of dealing with the proceedings seems to reside in Rule 14F, which was to say that it was not sustained, it is not a point of order, sit down. Each time that the Members were ordered to sit down, the Members did in fact sit down. Another Member may have risen to repeat the same issue, but that Member too was told to sit down, and that Member sat down. It would appear from the Joint Rules that the presiding officers selected to invoke Rule 14F, where there were repetitions and what they viewed to be irrelevant and to order the speakers to discontinue with their speech and following that order, the speakers sat down.
The presiding officers could have also invoked Rule 14G, which was, that if they were of the view that their authority was being disregarded, that any rules in the provisions were not being obeyed or if they were of the view that a Member was engaging in gross disorderly conduct, the presiding officers could have ordered each specific Member who in their view performed any one of these transgressions in Rule 14G to leave the room. That occurred possibly only once, specifically and quite pointedly to Ms Sonti.
As a whole, on having viewed the footage, Adv Mayosi's initial view is the following, the Joint Rules set out what the rules of debate for a joint sitting are. Unfortunately, and this is a common complaint across all political parties, the Joint Rules are not as explicit as the National Assembly Rules. The Joint Rules are somewhat cryptic. The National Assembly Rules are quite specific. When a presiding officer has made a ruling that ruling is final. A Member is not privileged to raise a point of order when a presiding officer has already ruled. It is quite specific in dealing with the kind of conduct playing out during this SONA. Unfortunately, those are not the rules that apply here. The tools that were given to the presiding officers are in Rule 14F, which they invoked throughout the entire proceedings. They did not invoke Rule 14G except in the case of Ms Sonti. Ultimately, they invoked Rule 14K which had the effect of suspending the sittings for a period and then reconvening later. When the sitting reconvened, the Chairperson of the National Council of Provinces (NCOP) then pointed out Rule 14G to Members. It would appear then they were warning the room in a sense that if the conduct that had been happening in the first session continued, they were pointing out that they have powers to order the disrupting Members to leave, but it did not get to that point, because the Members who objected to the presence of Mr Pravin Gordhan then left of their own volition.
The decision is ultimately for the Committee to make, but the Advocate expressed her view on the matter. In order for ‘charges’, for want of a better term, to have a somewhat reasonable prospect of succeeding, it is important that the presiding officers be able to demonstrate that they used all the tools at their disposal during the particular session. These are the tools that are available to them in the applicable rules. It must be shown that those tools did not work and that the Members involved deliberately flouted those tools wherefore they will be found to be in contempt of Parliament. She was not convinced that this was such a case. She was not convinced that the presiding officers used all the tools at their disposal. The rules are not helpful, which must be stated upfront. If the rules were more explicit, in the same manner that the NA Rules are, this difficulty would not be there, but the rules are not explicit.
Rule 14G empowers the presiding officers to say the Members are now being disruptive and they need to leave and that in the presiding officer’s opinion, they are being contemptuous by raising issues that have been repeatedly raised and that they are ordering the Member to leave. It did not play out in that manner. The strategy adopted by the presiding officers was more lenient and patient, which was to say, the Members were repeating something they had already ruled on, and then ordered the Member to sit down. She was not convinced that this was a clear-cut case of contempt of Parliament or that the prospect of charges of being in contempt of Parliament would succeed. It is for the Committee to decide about the case where the Member was ordered to leave and did not and where the bottle was thrown but that Member was not identifiable. She claimed she was not convinced that all the tools available to the presiding officers were invoked for the sitting to sustain a conclusion that the Members involved were in contempt.
On an ordinary viewing of the session, it can be said from a common sense watching of the session, it was a difficult and problematic session and it was a session in which things did not go according to order, but the presiding officers had certain tools to deal with that, to bring the session to a place where it runs according to what is anticipated for a session to run and those tools were not invoked. In any such hearing or resultant proceedings, the presiding officers would need to explain why they opted for Rule 14F and not Rule 14G, when it appeared from an ordinary common sense viewing of the session that the situation was serious enough to invoke Rule 14G and could be brought to a semblance of order had Rule 14G been invoked upfront. In conclusion, in her opinion, the success of contempt of Parliament charges might be less than reasonable. In legal terms, it is the highest and lowest bar to describe matters, it can never be said conclusively that something is going to fail or succeed.
The Chairperson commented that the purpose for which Adv Mayosi was there was to assist the Committee to do exactly what she had done, having viewed the video recording. It is up to the Committee to decide based on the advice whether they proceed with pressing the charges of contempt of Parliament or not. The Committee has been concerned from day one whether they will succeed or not because it is a bit more technical when it is investigated from the beginning. When the presiding officer says to a Member to sit down and the Member sits down, and the Member rises on a point of order, the presiding officer will say that Member is not recognised, sit down and ultimately the Member will sit down. Whether the Member sits down immediately when instructed is another point that can be looked at. Most parties are not happy with what happened; hence it had been referred to this Committee. He asked the Committee Members to engage on the matter.
Ms D Peters (ANC) asked a point of clarity. She saw that Ms Sonti was called out by the Speaker to leave and then she sat down. Immediately, Mr Malema called the Speaker to order and addressed the Speaker on the Ms Sonti matter. The Speaker did not go ahead with a decision on Ms Sonti’s ejection from the House. What does Adv Mayosi read into that particular type of situation? She wanted clarification on how the Speaker was meant to follow through on every aspect of her input. For example, if the Speaker orders that a Member must leave the House, must she indicate that in terms of the rule, the Member has transgressed and is in contempt of Parliament? In this instance, Ms Sonti had made her statement and the Speaker told her to leave the House and Mr Malema then interjected.
Mr H Hoosen (DA) raised a question on procedure. What is it exactly that this Committee is expected to do from this discussion? This is important because if the Committee is asked to discuss the footage, his concern is that in the process of doing that some Committee members may end up pre-judging. Is it that the Committee is being asked to consider the footage and whether or not charges should be brought against individual members? It is important to get the Chairperson’s guidance on this matter first. What is it that the Committee is trying to achieve? If the Committee has a general discussion about the footage, it is concerning that some Members may inadvertently pre-judge the matter and that might be problematic.
The Chairperson responded that he would address Mr Hoosen’s question.
Adv Mayosi replied to Ms Peters. Her observation of the Ms Sonti incident was that she was initially not recognised by the Speaker, but she was ultimately recognised, and she got up to speak. She once again raised the presence of Minister Pravin Gordhan. The Speaker ruled by ordering her to leave the House. Ms Sonti sat down. Mr Malema then objected and insisted the Speaker call Ms Sonti by her name. The Speaker requested that Mr Malema take his seat. The next Member immediately rose and asked if the Speaker had suspended the rules. That issue was left as it was. The matter of Ms Sonti being asked to leave the room was not pursued further.
Logically, what the Speaker ought to have done was she had pointedly instructed a Member to leave the House but the Speaker did not follow through with that instruction as she should have taken that instruction to its logical conclusion. She allowed the proceedings to be superseded in circumstances where her instruction was not followed. There may be an argument that the Speaker absolved Ms Sonti from having to comply with her instruction because the Speaker was fully within her powers to insist that the instruction be obeyed. The issue was left as it is after Mr Malema placed his objection. Adv Mayosi’s view of that particular instruction to leave and the lack of insistence on that instruction being obeyed would seem to speak to Ms Sonti having been absolved of the responsibility to obey that instruction.
Particularly, after the suspension and resumption of proceedings, it would seem that based on Deputy NCOP Chairperson Lucas addressing the House, it was then that the presiding officers were indicating they were going to invoke Rule 14G and take the matter seriously. Then it was made clear but before that it was not. After Ms Sonti was instructed to leave and she did not, the opportunity was lost there to follow through with that instruction, which leads to the argument of Ms Sonti having been absolved.
The Chairperson responded to Mr Hoosen’s question on the objective of the Committee’s enquiry. It is to identify Members whose conduct is a disruption of the proceedings of a joint sitting of Parliament and therefore prima facie, in contempt of Parliament. The purpose of viewing the footage is to identify those Members and how they would be in contempt of Parliament. This is the same exercise that was carried out in the incident of the Budget Vote Speech of Minister Pravin Gordhan. The Committee viewed the footage and identified Members that participated and concluded that charges must be preferred, and the Committee proceeded, and the charges were brought against them. That process is currently ongoing. Tentatively it should be concluded by 24 November. This Committee is expected to do exactly the same in this meeting, but due to the uncertainty that existed during the Committee’s deliberations, the Committee obtained advice in the form of an opinion but the opinion did not answer the matter sufficiently. The objective of being advised by Adv Mayosi is to determine if the Committee can proceed with the matter and be successful in it. This matter was referred to the Committee and it must deliberate and conclude whether there is a case to answer to and proceed with it. When getting into the merits, it is to determine whether there is a case.
Ms G Tseke (ANC) confirmed that she was not present at the previous meeting where the Committee had deliberated on the matter, but she had an opportunity in this meeting to view the footage. Based on that footage, she does not personally believe the Committee has the prospect to succeed in the case. This was because the points of order raised by EFF Members were properly executed and planned and done according to the rules of Parliament. The presiding officers were not decisive in dealing with the Members who were contravening the Joint Rules. She agreed with Adv Mayosi that there was a certain point in the footage where the Deputy Speaker raised a point of order, he was questioning the Speaker saying the Members are contravening Rule 14G. The presiding officer however was not decisive when taking action against, for example, Ms Sonti and Ms Mkhalipi. She does not personally believe they have a case, but she was open to listening to what other Committee members had to say. The presiding officers had the choice to invoke Rules 14F, 14G and 14H but they did not have the power of strength to invoke those relevant sections.
Mr M Ndlozi (EFF) confirmed that he also unfortunately was not present at the first meeting when the Committee deliberated on the matter. At the tail end, where he caught the footage, he admitted that he may not have heard the substantive point on which Adv Mayosi based her arguments. However, he believed the prospects are baseless. He provided reasons for this. Firstly, from a prejudicial point of view, the Committee has been asked to look at footage and decide if Members are contravening the rules of Parliament. The Committee as a result is looking at EFF Members and that is wrong. The Speaker ought to refer a specific MP to the Committee. The Speaker must open a charge similar to when one goes to the police station. Then an investigation ensues to determine if that particular individual had indeed broken the law. In this case, the Committee is basically fishing but the fishing is so prejudicial. The Members are not even apologising for taking that approach but are looking at the MPs in the red overalls in a sitting of over 400 people. The exercise is already wrong because the referral was wrong. The Speaker was supposed to say that Member X has contravened the rules by doing 1,2,3 and 4 and then subject them to a disciplinary process. Then they look at what is given as evidence and decide if indeed the Member can be charged on the basis of what that particular Member has contravened or done. This exercise is not in line with natural justice. Many of the high court rulings have indicated in most of the cases that Members of Parliament could not be charged as a collective because that is wrong. Thus the first reason that there is no case is because the referral was wrong.
On the second point, it is important to note that Ms Sonti did leave the House. She may not have done so immediately but she did leave the House. All EFF Members left the House. There is no case on the Ms Sonti matter because in her individual rights as a Member of Parliament she left the House. The Committee is then going to be splitting hairs about whether she left immediately or whether the Speaker asked the Sergeant-at-Arms to accompany her. Did she leave the House? Yes. Ms Tseke and Adv Mayosi’s response was that the Speaker in her own pursuits seemed to have been agreeable to the point of order raised by Mr Malema about her order for Ms Sonti to leave the House. Again, however, it is not Ms Sonti that has been referred to the Committee in that she contravened a specific rule of Parliament. Such an approach is wrong. It is prejudicial. The process is that when the Speaker refers matters to the Committee, she must do so by naming Members and what rules they have contravened. He agreed with the proposal that there is no case at all. It was a robust debate and a robust moment of a democratic Parliament, as it ought to be.
Mr Hoosen commented that there was a reason why he raised his earlier question. For him the question is if this Committee decides the rules of Parliament have been contravened, would it be correct for the same Committee to hear the matter? Based on the footage shown, if he were asked for his view now on the conduct of various Members, he would express a view. He is afraid that the view he expresses may already pre-judge the outcome if they get to the hearing stage. The two stages need to be separated and if it is this Committee that must apply its mind in an independent manner on whether the rules were breached.
He asked if it is the case that only Rule 14G applies in this particular circumstance? He provided a practical example. The Speaker orders him to sit down and he refuses. The Speaker orders him not to raise a point of order and he refuses. The Speaker makes a ruling, and he continues against that ruling. Do those actions not contravene the rules of Parliament, the consequence of that being in contempt of Parliament? Is it only that because Rule 14G may have not been applied entirely or to the letter of the law by the Speaker, that such examples he provided cannot be acted upon?
Adv Mayosi responded to Mr Hoosen’s second question. This was a joint sitting of the Houses and thus the Joint Rules of Parliament applied. Whether there is contempt or not has to be read from the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act together with these rules. The facts of a particular case inform the application of the rules. Section 13 of the Act describes conduct that constitutes contempt. One item specified in that section is that if a Member wilfully fails or refuses to obey a rule, order or resolution of the House, that constitutes contempt. Here the conduct the Member engaged in needs to be identified to disobey the rule. What is the rule and what is the conduct? The Joint Rules do not provide as do the NA Rules that a Member may not rise on a point of order that has already been deliberated on. The Joint Rules do not as the NA Rules do, state specifically that the ruling of the presiding officer is final. That is not specified. For the purposes of contempt, because contempt has an intention to it, then reference must be made to the rule. For the purposes of the Joint Rules in a joint sitting, the rule can only be Rule 14G, because it is this rule, in the absence of explicit specification like the NA Rules, that allows a presiding officer to form an opinion that a Member is deliberately contravening a provision of the rules. Again, the rule must be found in the Joint Rules that is being deliberately contravened. It is Rule 14G that allows the presiding officer to form an opinion that a Member is in contempt or is disregarding the authority of the Chair or that a Member’s conduct is grossly disorderly.
The NA Rules have a similar provision and specify what gross disorderly conduct exactly is. That is not however provided for here. It is there that the presiding officers are empowered to take certain steps and that is to order the withdrawal of the Member. Whatever conduct is being dealt with; the contempt has to be located within the applicable rules. Section 7 of the Act says a person may not improperly interfere with or impede the exercise or performance by Parliament or the House of its authority or functions. Before it gets to the stage of the person improperly interfering, reference needs to be made to the rules and the facts. The rules empower the presiding officers to manage or prevent such improper interference and did the presiding officers exercise the tools that the rules gave them to prevent such improper interference? That is where we are on these facts. In her view, the presiding officers decided to take a more lenient approach. The Speaker did say that they had decided to take a more patient and lenient approach. It is not for Adv Mayosi to say if the approach was correct. All she can say now, is that the tools they chose was Rule 14F. They did not choose Rule 14G in circumstances where it could have been invoked earlier in the proceedings if they believed that the matters set out in Rule 14G are in fact happening. It would appear that the presiding officers were of that opinion, but they did not invoke Rule 14G.
Contempt has an intention to it; thus, we have to find our way back to the rules that applied to a particular setting in order to get to that particular conclusion. Section 14H did not arise because they did not ask the Members to leave. Section 14H arises where the presiding officer is of the opinion that the contravention is of such a serious nature that asking the Member to leave is not enough. That is another tool that could have been available to the presiding officers. A finding of contempt has to begin with the applicable rules on the facts they are presented with. Those are the limitations within which they must operate.
Adv Frank Jenkins, Senior Law Advisor: South African Parliament, commented that the matter should not have been referred. He was not sure if there was a collective decision to refer the matter. The decision to refer it is taken by the Speaker and the NCOP Chairperson after consultation. The fact remains that this Committee must consider a matter referred to it. The power to do so is not only in the rules but also in section 12 of the Act that says that the House must establish a Committee to enquire into any matter or act that falls within the ambit of contempt, and this is what is happening here. The Committee can report back saying they have looked at it and this matter does not fit within the ambit of what is contempt and not go further. Or the Committee can recommend to proceed with a hearing. However, a consideration of the referred matter certainly must happen and the Committee is obliged to follow that procedure. It cannot report back to say it is not going to consider the matter. The procedure as it is being done now is in accordance with both the Act and the rules.
A comment was made that the more substantial point is the form of the referral, not whether the Committee has to deal with the referral or not. If the Committee could find common ground as clarified by the legal representatives of Parliament, on the form of the referral. It is not the Committee’s place to fish for who is breaking the rules. They are supposed to get a referral that states a specific Member has broken a rule in a specific manner then deliberate if indeed that is the case. That is the clarity the Committee must gain so they have a common ground, not only for this case but also for the future. The Committee knows that a referral needs to be in a specific form otherwise it is unworkable, and makes them fall into all forms of prejudice.
The Chairperson responded that he would not like to put the officials on the spot to speak on behalf of the Speaker. What Legal Services can help the Committee with is the law – to interpret the Act. The act of referral however is done by the Speaker and it is the Speaker who has referred the matter to the Committee, which the Committee must deal with and report back to the Speaker and ultimately to the House. He was uncertain if the officials present would be in a place to pronounce on the action taken by the Speaker. He suggested that the Committee flags the matter for clarity on whether the Speaker should refer and name the Member or refer an incident and ask the Committee to investigate, establish and identify the Members involved. He suggested they make that ruling and they should not place Parliament staff in a very difficult position where they would have to comment on the actions of their principals.
It is clear that based on the comments and the advice received that this Committee does not have a reasonable prospect of succeeding in bringing charges against any Members as referred to the Committee. A deficiency has been identified. In the Joint Rules of Parliament, especially as it relates to the repetition of points of order, the deficiency in the Joint Rules needs to be corrected in making it very clear as in the NA Rules that a point of order raised and dealt with, if a Member continues to raise that point of order, they will be contravening the rules. It is quite specific in the NA Rules. The rules for a joint sitting are not very clear and therefore it might have been an issue that made the presiding officers tread carefully on that day. The Committee made the observation that the presiding officers chose to be lenient on the day and not to utilise to the fullest the instruments available to them by utilising Rule 14G which was much more emphatic when dealing with the situation observed. It will thus be difficult going forward to deal with this matter, thus the Committee will make its report to the Speaker raising all these issues and indicate the determination that this Committee will unfortunately not be able to proceed with the matter.
On the matter of Ms Sonti, the Committee will not be able to proceed with it. This is on the basis that the matter is not very clear whether, after the Speaker ordered Ms Sonti to leave the House and the subsequent objection by Mr Malema, the Speaker chose not to pursue the matter. It is uncertain if the Speaker had reconsidered her ruling or if she was still firm on that ruling. It is not clear from the footage. This makes it difficult to pursue that matter. If Rule 14G has been invoked that the Member must leave the House, if the Member refuses to leave the House, they must be assisted by Protection Services. If that rule has not been invoked to its logical conclusion, especially given that there was an interjection of a point of order on that ruling, it is uncertain if there was reconsideration of that and therefore it becomes difficult to proceed with the matter.
On the matter of the Member throwing a water bottle, from what Adv Mayosi says, it is not clear who that Member is. He also tried to determine who it was. Throwing an object is definitely against the rules and that Member must be identified. The Committee needs to know who that Member is, and that Member needs to explain why they threw the bottle. No matter how that Member was provoked, that is not in line with the rules. The Committee will request the team that is helping them with the footage to identify that Member. He did not know if it was a Member of the NA or NCOP to determine which Committee has jurisdiction. He advised the Committee that they would meet again on 24 November.
The meeting was adjourned.
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