HIGH COURT OF LESOTHO
by the Honourable Mr Justice WCM Maqutu on the 23rd day of August,
accused Charge sheet was as follows:
GUILTY OF 24 COUNTS OF THE CRIME OF THEFT, ALTERNATIVELY, FRAUD
at all times relevant to this indictment:
Compulsory Savings Act 26 of 1974 ("the Act")
for the following:
1.1 The deduction of an amount equal to 5% from the salary of a civil
servant in the employ of the Government of Lesotho ("the
1.2 such funds deducted were to be paid into a special savings
account in the name of each individual civil servant by the
Accountant-General of the Government; and
1.3 Such amounts could only be withdrawn after five years had elapsed
from the date of the first deduction;
Savings Order 18 of 1992 ("the Order") amended the Act to
provide that all deductions and interest would be repayable to each
civil servant after three years had elapsed from the date of the
withdrawals were allowed where the participant to the Compulsory
Savings Scheme ("the Scheme") passed away, was female and
married, became ill or infirm, retired or resigned from the civil
Scheme was compulsory for civil servants and voluntary for employees
separate bank accounts were opened for each individual participant
and all contributions were paid into a single bank account while The
Treasury Department of the Government ("the Treasury")
maintained a separate ledger, recording the amounts due to
by civil servants were automatically deducted from their salaries
and updated in the records of the Compulsory Savings Department
from employees of parastatals were paid over to the Scheme by
cheque, drawn on the bank account of the relevant parastatal, and
accompanied by a contributors' list. The Scheme's records are then
manually updated in the Computer Department, and which updated
information is verified by the Department;
following procedure was performed in the payment of claims:
8.1 All claims, whether arising automatically after three years or
entered manually, are verified by the Department;
8.2 The Department then compiles a list of claims which is then
inputted in the Department's records by personnel of the Computer
8.3 A transaction listing is printed and reviewed by the Department.
8.4 Subsequent to such review, the relevant cheques
are printed in the Computer Department; and
8.5 The printed cheques are then returned to the Department for
review and despatch to the Government Departments and parastatals
where the claimants are employed.
9. Accused 1 was an accountant in the Department where she acted as
senior accountant from September 1992 to August 1993. She had the
responsibilities of a supervisor in the Department which included the
9.1 The training of junior officers;
9.2 The verification of the correctness of information relating to
transactions of the Scheme;
9.3 The authorisation for production of Scheme cheques; and
9.4 The maintenance of the Scheme's cheque register.
10. Accused 2 was related in marriage to Accused 1 and conducted a
business styled "Downtown Cafe".
11. The Accused, where Accused 1 directly and accused 2 through the
medium of Accused 1, procured cheques from the Scheme payable to the
names of persons not
to receive payment from the Scheme; and
12.1 Handed the said cheques to such persons, or persons other than
the payees, who, after having deposited the said cheques into their
bank accounts where they were met with payment by the Government,
returned funds to Accused 1; and/or
12.2 Deposited the said cheques into her own bank account where they
were met with payment by the Government; and/or
12.3 handed the said cheques to Accused 2 who deposited the said
cheques into the business account of the entity styled "Downtown
Cafe" where they were met with payment by the Government; and/or
12.4 Were party to a scheme to obtain cheques from the Scheme,
deposit such cheques into their own banking accounts, or the banking
accounts of others and obtaining the monies and/or proceeds
ACCUSED ARE THEREFORE GUILTY OF TWENTY FOUR COUNTS OF THE CRIME OF
upon or about the dates mentioned in column 3 of Annexure "A"
hereto, and at or near Maseru in the district of Maseru, the said
accused did unlawfully and intentionally steal the amounts of money
mentioned in column 4 of Annexure "A" hereto by means of
cheques with details mentioned in columns 2 to 5 of Annexure "A"
hereto, the property of, or in the possession of the Government of
Lesotho and/or the Central Bank of Lesotho.
THE ACCUSED ARE GUILTY OF TWENTY FOUR COUNTS OF FRAUD.
upon or about the dates asset out in column 3 of Annexure A the
accused, in a joint scheme as alleged herein-before, did unlawfully,
falsely and with the intent to defraud, to the actual or potential
prejudice of the Government of Lesotho and/or the Central Bank and/or
the employees of the Government of Lesotho and/or the contributors to
the Compulsory Savings Scheme ("the said prejudiced parties")
with the prejudice as referred to in column 4 of Annexure A represent
to the said prejudiced parties that:
individuals are referred to in column 5 of Annexure A were members
of the Compulsory Savings Scheme; and/or
individuals had contributed to the Compulsory Savings Scheme; and/or
individual's names appeared on the contributors list; and/or
individuals were entitled to payments from the Scheme in terms of
the provisions of the Scheme as set out herein before; and/or
individuals were entitled to receive the monies and cheques as
referred to in columns 2 and 4 of Annexure A and/or
individuals did receive the full amount and the cheques as referred
to in columns 2 and 4 of Annexure A
1 2 3 4 5
Chq date Amount Payee
15-Feb-91 5,945.42 TJ Masebekoa
63767 31-Jul-91 7,372.10 M Shale
19-Feb-92 7,404.32 N Moleko
19-Feb-92 7,285.17 N Masilo
67351 4-May-92 6,635.68 M Sofeng
19-May-92 6,154.15 M Marabe
68054 16-Jun-92 7,662.68 F Manong
68144 25-Jun-92 6,596.32 M Khaile
68343 7-Jul-92 11,365.74 T Mota
24-Jul-92 8,807.67 A Ramotsei
69174 14-Aug-92 9,546.28 M Maofane
14-Aug-92 8,652.75 L Sekope
74333 14-Sep-92 8,859.85 E Manong
14-Sep-92 10,120.09 M Mohapi
21-Dec-92 10,511.75 M Letuka
8-Apr-92 8,102.84 L Mofola
76023 21-Dec-92 10,254.10 M Malefane
59624 10-Oct-91 8,042.70 M Masuku
25-Mar-91 7,778.09 C Potsane
14-Aug-92 10,327.22 M Masuku
28-Dec-90 5,806.51 M Mapetla
4-Feb-91 6,604.02 A Khoabane
19-Nov-90 7,971.17 R Matsepe
66719 5-Mar-92 8,541.34 K Ramotsei
accused pleased not guilty of all charges.
were made in terms of Section 273 of Act 9 of 1981 (i.e. The Criminal
Procedure and Evidence Act of 1981):
is admitted that the individuals as referred to in column 2 of
Schedule "A" were not in the employ of the entities as
referred to in column 3 of Schedule "A".
is further admitted that the individuals as referred to in column 2
of Schedule "A" were not contributors to the compulsory
savings scheme and therefore could not benefit from a repayment or
claim lodged at the compulsory savings scheme as referred to in
column 4 of Schedule "A" ".
Tseliso Mosebekoa, duly sworn, was declared as an accomplice and was
warned of his legal position.
Mosebekoa (PW1), duly sworn, said he did work on Accused 2's butchery
and charged M1700.00 for installing electricity in it. Accused 2 sent
him to the place of work of Accused 1. Accused 1, the wife of Accused
2, gave him a cheque of M5945.42 drawn in the name of Mosebekoa J
dated 19/2/1991. PW1 went to deposit it in his savings account at the
Lesotho Building Finance Corporation on Accused 1's instructions. In
terms of their agreement PW1 withdrew M2155 and gave it to Accused 1
who gave him M1700.00. PW1 was asked to withdraw
M2000.00 and give it to Accused 1, this PW1 reluctantly did. PW1 was
told, by Accused, 1 M1700.00 was an advance payment for work to be
done. PW1 fitted a new cistern for the toilet.
the court that he was not in the compulsory savings scheme. He had
not right to money in the compulsory savings scheme. The compulsory
savings cheque was handed in as Exhibit A.
cross-examination PW1 conceded that he did not tell the police the
truth about the amount he got. PW1 did not agree with the accused on
the way their house is and on the work done on it. To a suggestion
that PW1 did not work for the accused, PW1 insisted that he did. In
re-examination PW1 said before Accused 1 advised him to open a bank
account. PW1 said he did not have a bank account. Accused 1 had even
threatened him if he made a statement to the police. PW1 told the
court that he reported this to the police.
accomplice was Khomo Ramatsei who gave evidence to the effect that
Accused 1 was his maternal aunt. The cheque on page 54 which was
later marked Exhibit J was given to him by Accused 1 between 1992 and
1993. They were to share the proceeds. It was for the sum of
M8807.67. PW2 needed the money. PW2 signed at the back of the cheque.
PW2 put it in his savings account. PW2 said he does not remember
exactly how they shared but he did give Accused 1 her share.
(warned as an accomplice) was N. Masuku. Duly sworn she said during
1990 she had worked at the Ministry of Agriculture. PW3 said she
knows Accused 1 and her husband Accused 2. Accused 1 was part of her
family. The parents of this witness had brought up Accused 1. Accused
I had handed her a cheque of M8,042.70 on or about the 10th October
1990 and she had signed at the back of the cheque. PW3 got about half
the money and Accused 1 the other half according to their agreement.
This cheque was later marked Exhibit R. PW3 also got a cheque of
M10,327-72 from Accused 1. She kept half the money and Accused I got
the other half by agreement. This cheque was later marked Exhibit T.
PW3 told the court that she had not earned that money. When this
happened she had long got her compulsory savings money to which she
was entitled. She did suspect it was wrong for her to have these two
showed accused would deny giving PW3 those cheques.
Potsane was the next Crown witness to give sworn testimony that she
was warned as she is an accomplice. She told the court that Accused 1
was brought up in his family. Accused 1's father had been working in
the Masuku family when he died. PW4 gave evidence about a cheque of
M5,806.51 which was handed to her by Accused 1. Accused 1 had brought
her the cheque. This cheque was later marked Exhibit U. The cheque
was deposited in PW4's account. PW4 gave Accused 1 half the amount
and kept the other half for herself.
revealed PW4's daughter was also involved in this cheque fraud. PW4
said she did not know. It appeared the late husband of PW4 had also
been involved but PW4 did not know this. It was said Accused 1 would
deny giving PW4 the cheque, PW4 insisted that Accused 1 had given her
had called Mapeete Setala (also accomplice) as the fifth witness(
PW5) and she gave sworn testimony. PW5 told the court that she was a
friend of PW..........................and had been so since 1980. PW5
said she worked in Government revenue collection. She had handed to
Accused 1 a bundle of cheques which included a cheque of M6604.02. At
that time she was still using her maiden surname. PW5 had financial
problems and asked for help. Accused 1 brought her this cheque. She
was to give Accused 1 about M3000-00 or M4000-00 out of the money -
she could not remember the exact amount. She kept to their agreement.
PW5 knew what she was doing is wrong.
cross-examination, it was indicated that Accused 1 would deny giving
PW5 the cheque. PW5 said she did.
sworn PW6 Makholulu Anna Pholo said she was a Senior Auditor. In 1994
she had audited the compulsory savings scheme. It was a special
assignment from the Auditor General. PW6 was given a few cheques and
told to go to the Treasury. She was referred to the Financial
Controller of the Treasury by the Accountant General at the Treasury.
referred to the reconciliation department because she did not have
enough information. She ended up in the Compulsory Savings Department
where she was referred to Accused 1 and one Mrs Mosetse. PW6 asked
for the register of compulsory savings cheques. Both of them said it
did not exist. Mr Mokhoabane, who used to work in that department,
said the register existed and produced it.
asked for a list of contributors from Accused 1 and she gave them to
her. PW6 perused everything and wrote a report which appears on page
32 to 42 of the bundle of documents given to the court as a file. A
total of M907,455-15 had been irregularly paid out of the compulsory
savings fund. Five (5) people were involved in this irregular
practice, one of them was Accused 1. The owners of the funds were
supposed to have signed the register for their cheques. PW6 studied
the procedures of how cheques were written, kept at the Computer
Centre and sent to the Compulsory Savings Division of the Treasury.
She got possession of the list of cheques from the Computer Centre
and different registers that were kept for Government parastatals and
Government Departments. In the register for parastatals that PW6 got
from Mr Mokhoabane, all people who were issued with cheques were
listed. In this list Accused 1 had signed for some cheques. This
register got lost during investigation. PW6 identified the following
cheques in the file compiled for the court:
on page 45
Exhibit B on page 46
Exhibit C on page 47
Exhibit D on page 48
Exhibit E on page 49
Exhibit F on page 50
Exhibit G on page 51
Exhibit H on page 52
Exhibit I on page 53
Exhibit J on page 54
Exhibit K on page 55
Exhibit L on page 56
Exhibit M on page 57
Exhibit N on page 58
Exhibit O on page 59
Exhibit P on page 60
Exhibit Q on page 61
Exhibit R on page 62
Exhibit S on page 63
Exhibit T on page 64
Exhibit U on page 65
Exhibit V on page 66
Exhibit W on page 70
Exhibit X on page 71
of cheques had been deposited in the bank account of
Cafe in the Standard Bank in Account Number 027042260761. These were:
Exhibit C on page 47
Exhibit G on page 51
Exhibit I on page 53
Exhibit K on page 55
Exhibit M on page 57
account Number 027042260761 belonged to Accused 2, the husband of
Accused 1. PW6 reported her findings to the Auditor General.
cross-examination PW6 said she was told that the bank account
belonged to Accused 1. PW6 noted that Accused 1 would deny. She hid
the register for parastatals. What PW6 insisted on was that Accused
she did not know what she was talking about.
sworn testimony was that of PW7 Malesiamo Motsoasele. She said she
did not work at the Compulsory Savings Scheme, but she was asked to
compile information on how it worked. It was Accused 1 who told her
how the scheme works. Accused 1 was a Grade 8 supervisor in charge of
other officers. PW7 described how claims were made and cheques drawn
which were eventually handed to Accused 1 as supervisor in the
Compulsory Savings Section. When that happened, the cheques would be
registered. The cheques would then be picked up by the payee or by a
person authorised by the payee. PW7 said she took Accused 1's word on
PW7 said cheques were signed by a machine. When the cheque was ready,
the person authorised to sign for the cheques from the compulsory
savings Department would collect and sign for the cheques.
Rantelali Matsepe (another accomplice who was duly warned). He gave
evidence on oath. He told the court that his signature appears on
Exhibit W which is a cheque drawn in his favour. He had approached
Motseoa Potsane about his financial problem. Motseoa Potsane went to
the Treasury and brought a cheque of M7,971.17 Exhibit W, already
written R. Matsepe which were his names. PW8 deposited it and
withdrew M5000-00 and took it to Motseoa Potsane. There was no lawful
reason for receiving that cheque. It was Government money.
Motseoa Potsane was recalled and gave the following
testimony. PW9 told the court that she knew Accused 1 wanted people
to write cheques in their names and share the proceeds. Accused 1
made the cheque in PW8's name. The agreement PW9 made with PW4 was
that PW8 would get the cheque through PW4. PW8 delivered Accused 1's
share of the money which PW4 handed to Accused 1.
cross-examination PW4 said PW8 did not know Accused 1. PW4 says
Accused 1 gave her the cheque even if Accused 1 might not have
created the cheque. There were difference between PW4's evidence and
the statement she made to the police. She said it was because she was
frightened. She conceded she lied before the police to avoid going to
then called Inspector Tsita as the 9th witness PW9. He gave sworn
testimony to the effect that in July 1994 the Department of Treasury
lodged a complaint to the police. PW9 got files of parastatals and
cheques and found they had been deposited in certain banks. Among the
bank statements of accounts he got were Exhibit 2 in respect of
027042260741 which appears on page 11 to 21 of the file. The savings
banks books involved marked Ex.AA appeared on pages 24 to 31.
explanations from Accused 1. Then he went to Accused 2, who was the
owner of Down Town bank account. Accused 2 would cash them for
friends and co-workers of Accused 1. He reduced the explanation in
writing and Accused 2 signed it. This was not introduced in evidence
inadmissible as it dealt with Accused 1, the wife of Accused 2.
cross-examination PW9 denied handling Accused 2 roughly. PW9 claimed
to be even a friend of Accused 2. He added that he does not even know
how Accused 2 was arrested as he PW9 had been transferred.
closed its evidence.
Defence put Accused 2 as its sole witness to give sworn testimony.
duly sworn told the court that Accused 1 had three children. Accused
2 said he went as far as Form 2. The police arrested him in June 1995
alleging he had stolen government money. He described his ordeal at
the police station. Accused 2 said the Government cheques that were
in his account were from customers. He changed cheques if customers
bought for at least M100.00. The police said Accused 2 was lying he
had been given these cheques by his wife Accused 1.
said he changed cheques if a customer bought for at least M1 00.00.
If the cheque was for a lot o money say about M8,000-00, he would ask
the customer to come the following day. In the meantime he would go
to the bank so that he could have the money the following day when
the customer came. He would deposit the cheque and withdraw the
change. Accused 2 denied PW1 Mosebekoa did any work for him.
cross-examination Accused 2 admitted his business account was Down
Town Cafe. Accused 2 said he makes M5000-00 per month. He did not
keep any records. He made M500.00 or more a day. Accused 2 said he is
not sure what his profit is per day. He does not make much profit
because there are many cafes. He stopped trading because there was
too much pilfering.
in answering further questions said he did not know the section of
the Treasury where Accused 1 worked.
M5000-00 that he made per month included his profit. It was possible
that strangers would leave cheques with him until he obtained
changes. Accused 2 did not know why people preferred to change
cheques of up to M10 000-00 at his place. When Accused 2 was asked
about specific amounts that were deposited but accompanied by no
withdrawals the following day, Accused 2 said he kept a float of up
to M8000-00 in the house. It could be risky to keep such an amount in
the house but he was not aware of this at the time. It had never
happened he gave a person M7000-00 all at once. When he was referred
to the 16th March 1992, Accused 2 said, this must have happened.
said he did not know what happened between his wife and the witnesses
who claimed they took cheques from her. Accused 2 asked about the
payment of taxes, replied that he had never paid tax. There were
cheques on which he had not sought the identity document such as a
passport from the holder of the cheque. The fact that these people
entitled to these cheques as PW6 had shown was unknown to him.
Accused 2 denied that these cheques that were deposited in his
account were from his wife. Accused 2 said these cheques were signed
by holders at the back in his presence. In respect of the Cheque
Exhibit C, Accused 2 had signed at the bank under the printed name of
NTSOAKI MOLEKO, Accused 2 said he did this at the suggestion of the
It is for
the police to find these thieves, although it did come to his mind to
find them to exonerate himself of these charges. Accused 2 told the
court the police took his deposit book and cheque book and left. PW1
might speak about him and Accused 1 to shield the actual perpetrator.
re-examination, Accused 2 said sources of money for cashing cheques
were trading account, savings account and the float in the house.
Strangers changed their cheques at supermarkets and other trading
It is not
disputed that the cheques Exhibits A to X were Government of Lesotho
cheques that were paying the people named on them monies from the
compulsory savings scheme. It is also not disputed that none of the
24 people (in favour of whom these cheques were drawn) were entitled
to funds from the compulsory savings scheme. It is not disputed that
these cheques were drawn fraudulently in a scheme to steal money from
the compulsory savings fund that Government had set-up for
accused are charged because the Crown seeks to prove that they were
involved in the fraudulent drawing of these cheques or in the receipt
of these monies knowing them to be stolen.
respect of Accused 1, there is evidence that she was a supervisor in
charge of other officers in the Compulsory Savings Department at the
Treasury. PW1 Tseliso Mosebekoa told the court Accused 1 gave him a
cheque of M5945.42 when he was not a contributor to the Compulsory
Savings Scheme on or about 15/02/91. This cheque, which PW1 deposited
in his savings account, is Exhibit A. PW1 says he withdrew part of
the money and gave it to Accused 1. PW2 Augustinus Ramotsei also says
Accused 1 gave him a cheque of M8807.67 Exhibit J which he deposited
in his account and another cheque of M8541.34 which he deposited in
his account. PW2 further testified that he retained a portion of the
money and gave a portion of the money to Accused 1. PW3 Maseboko
Masuku also says she was given the cheques Exhibits R and T
respectively in the amounts of M8042.70 and M10827.22. PW3 further
told the court that she kept for herself about half those amounts and
gave the rest to Accused 1.
did not go into the witness box to rebut this evidence. She also did
not rebut the evidence of PW4 who told the court that Accused 1 gave
her a cheque of M5806.51 Exhibit U. PW4 cashed the cheque and kept
half of the money and gave Accused 1 half of the money. PW4
approached Accused 1 to draw a cheque for PW8 for the amount of
M7971.17 Exhibit W. PW4 got the cheque Exhibit W and gave it to PW8.
PW8 deposited the cheque and withdrew a portion of the money
instructions, which money PW4 gave to Accused 1. Mapeete Setala PW5
similarly was given a cheque Exhibit V by Accused 1 for the sum of
M6604.02, this cheque was in her maiden surname. PW5 deposited the
cheque and gave Accused 1 about half the money.
Accused 1 has not gone into the witness box to contest the evidence
of PW1, PW2, PW3, PW4, PW5 and PW8 in respect of counts 1, 10, 18,
20, 21, 22,.... It goes without saying that Accused 1 had a prima
facie case to answer as she was not only one of the people who were
Government Officials dealing with Compulsory Savings funds but had
definite allegations of criminal conduct levelled against her.
beyond question that all the abovementioned witnesses are
accomplices. Consequently this court should caution itself against
convicting on the evidence of accomplices. See Rex v Ncanana 1948(4)
SA 399 AD at pages 405 to 406 Schreiner JA said the risk of wrongful
conviction is reduced where the accused does not give evidence in
rebuttal. Yet the need for corroboration (if it can be found) remains
especially where there is only one accomplice giving evidence to each
criminal episode. For this reason in Rex v Viljoen 1947(2) SA 56 AD
at pages 63 to 64 and S v Gokool 1965(3) SA 461 at page 479 E to 480
C courts have held that individual counts of the same criminal
conduct which have been executed in the same manner within a certain
period by the same offender against the same type of victim, have the
effect of corroborating each other.
case Accused 1 (from the evidence before me) was in the Compulsory
Savings Department of the Treasury. Five witnesses say she caused
cheques to be drawn in their names fraudulently to steal funds from
the Compulsory Savings Fund. In return she got a share of the money
they collected. The offence being the same and the modus operandi
used by Accused 1 also being the same these accomplices of Accused 1
in these offences corroborate each other.
portion of the case involves the cheques that were deposited in the
bank account of Down Town Cafe - Account Number 027/04/22607/61. The
manager of this Down Town Cafe was Accused 2, the husband of Accused
1. A statement made before the police by Accused 2, which was deemed
to be evidence against his wife Accused 1, was excluded on the
grounds that it might amount to the Crown making the husband give
evidence against her. In S v Groesbeak & Ander 1969(4) S A 683 it
was held that in a case where a husband is charged jointly with his
wife, the wife's evidence is not admissible against the husband. She
may enter into the witness box and give evidence in her own defence,
but this cannot affect the protection the law offers her husband and
vice versa. Further more Accused 2 was claiming it was taken under
duress and in dubious circumstances. The court did not have to
investigate the merits of Accused 2's allegations. It was conceded by
the crown that this statement was inadmissible.
the following cheques that were deposited by Accused 2 in
Cafe's bank account from people who cannot be found and by people
Accused 2 did not know.. Accused 2 says they bought for at least
M100.00 and he cashed their cheques and gave them the cash. It is not
in dispute that these cheques were fraudulently drawn to steal money
from the Compulsory Savings Fund which was operated by Government.
Accused 2 claims he is innocent, he did not know these cheques were
from a fraudulent source. Exhibit Z leads to the following analytical
table compiled by Mr Louw for the Crown:
that there were several cheques in the file or bundle which were not
made the subject of these proceedings. But these cheques had been
deposited in the bank account of Down Town Cafe.
and a scrutiny of the bank statements revealed that these cheques
were not deposited and money withdrawn to give the people cash, who
bought from the cafe for at least M100.00, the following day. But
Accused 2 had alleged that was what was supposed to happen. The
turnover was said to be M5000-00 per month, later this was described
as profit. At one stage Accused 2 said he kept a float of M5000.00 in
the house. This amount was increased as Accused 2 found it difficult
to justify the fact that cheques were deposited but money was not
withdrawn the following day to give to the people who brought the
clear that these cheques were brought by someone whenever the bank
account of Accused 2 was in need of funds. Whoever brought them is
immaterial because Accused 2 was aware that he was not entitled to
the money. I therefore reject Accused 2's claim that he changed the
cheques for customers. The bank statements contradict this assertion.
It was clear to me that Accused 2 was telling lies.
problem I have is what to convict the accused of.
fraud in the process of furthering a theft. Stand up Accused.
Accused 1 guilty of theft in respect of counts 1, 10, 18, 20,21,22.
Accused 2 guilty of theft in respect of counts 2, 4, 5, 6, 7,8,9, 11,
12, 13, 14 and
Crown : Miss N Nku
accused : Mr B Sooknanan
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