IN THE HIGH COURT OF LESOTHO
In the matter between:-
TEBOHO JOHANNES TSEPISO t/a
TEBOHO TSEPISO TRANSPORT APPLICANT
STANDARD LESOTHO BANK LIMITED 1ST RESPONDENT
Ms SEFORA TSUMANE 2ND RESPONDENT
Delivered by the Honourable Madam Justice N. Majara
on the 5th September 2011
Application for rescission and stay of execution – Court should be slow to refuse application on the ground that the allegations in the affidavits of the other party make it appear improbable that at any trial his defence will succeed if he discloses sufficient allegations to enable the Court to understand his defence and where the Court is not convinced that his conduct is mala fide in that he has no belief in the justice of his case but is merely alleging a defence to delay enforcement of the respondent’s claim.
This is an application for stay of execution and rescission of a judgment that was granted by default against the applicant on the 29th September 2010. The application is opposed.
In the founding affidavit deposed to by Teboho Johannes Tsepiso who describes himself as a self-employed businessman trading as Teboho Tsepiso Transport, it is the applicant’s case that on the 24th January 2011 the 2nd respondent served him with the Court Order in CCA/7/2010 “TJT1”and summons in CCT/08/2011. On the 25th January 2011, his Counsel of record made investigations and found “TJT1” in the civil registry in whose terms this Court had ordered the deputy sheriff to take into his possession and retain a machine CAT Excavator 320C from the applicant pending the final judgment in an action to be instituted by the 1st respondent against the applicant.
It is the case of the applicant that on the 23rd September 2010 he was served with the papers and notice of set down for the 24th September 2010. On the 24th September 2010 he attended Court and waited in vain for his name to be called. He finally went home. In the afternoon of the same day he was served with similar court process relating to a different machine the hearing of which was set down for the 27th September 2010.
On the 27th September, 2010 the applicant and his wife went to the offices of respondents’ Attorneys of record where they met with Mr. Buys with respect to the two matters and after discussions they reached an agreement that Mr. Buys would withdraw the matter while the applicant would pay his monthly instalments at the latter’s offices before the end of every month.
On the 28th September, 2010, the applicant went with his wife to the offices and paid the amount of M25, 000.00 cash as instalment in pursuance of the agreement of the previous day. He was issued with a receipt and subsequently paid the sum of M52, 000.00 on the 28th October, 2010, the sum of M30, 000.00 on the 30th November 2010, the sum of M6, 000.00 on the 7th December 2010 and that of M25, 000.00 on the 17th January 2011 because he was in arrears of payments in terms of the Hire-purchase agreement between him and the 1st respondent. The receipts are attached and marked “TJT2” collectively.
The applicant adds that he was shocked to learn about the contents of the Court Order as he had never agreed to the granting of prayer 2 as reflected in the minutes of the Court’s file. That he was never informed of the date of the 28th September 2010 as the notice stated the 24th September 2010. Further that even when he went to pay the instalment on the 28th September 2010 he was never informed that the application was set down for that day. The applicant also avers that he was not in willful default of non-appearance as the negotiations with Mr. Buys were done in good faith and he bona fide believed that the matter would not proceed as payment had been effected.
He adds that he has a bona fide defence in that the alleged arrears in the sum of M249, 000.00 has been drastically reduced by his payments as shown and that if he was in breach of the agreement the 1st respondent ought to have claimed payment of the amounts due instead of rushing to Court in the manner he did. Further that he approached the Court on an urgent basis because he was served with the Order of Court which can be executed anytime and that he would not be afforded substantial relief in a hearing in due course if the ordinary modes and periods prescribed by the rules of Court were followed.
In turn the deponent to the answering affidavit one Lana Kok who describes himself as the Head of Credit raised the following points in limine in his answering affidavit namely, that the applicant is guilty of material non-disclosure in that he failed to tell the Court that he is not in possession of the machine, the subject-matter of this application which is broken and is standing in South Africa awaiting the applicant to pay the repair costs and that he did so with the intent to mislead this Court.
Secondly that there is no urgency with respect to this application because Counsel who certified that he believes this matter to be urgent failed to verify the facts upon which he so certified and did not investigate the facts and circumstances pertaining to the case.
Further that when the applicant and his wife went to the 1st respondent’s attorneys’ offices on the 27th September 2010 to reach a settlement, he was fully aware that the application was set down for that day as reflected by the details of the discussions and settlement attached to the supporting affidavits of Mr. Buys, Ms Elias and Ms Matlapeng respectively. That the agreement was to the effect that the final order would be taken and if the applicant did not make the payments as agreed then the removal of the machinery would be effected.
The deponent adds that the applicant went to the offices of the 1st respondent’s attorneys on the 24th September fully aware that the application was set down for that day to see Mr. Buys but since the latter was out of the office he made an appointment to see him on Monday the 27th September 2010 at 10.00 a.m. In this regard the deponent attached an extract of the diary and marked it “01”.
It is also the case of the 1st respondent that the applicant failed to pay the instalments he undertook to pay hence the final order was executed. Further that by agreeing to the final Court Order the applicant destroyed the bona fide defence he may have had. He adds that the applicant was in willful default and decided not to oppose the application. That he admits liability for payment of both the outstanding balance and the arrear amount hence he had no basis to oppose the application. That in addition, the applicant did not provide the evidence of the balance of the debt he admits to this Court and has not given the Court the basis for it to judge whether or not he has a bona fide defence. Further that he did not oppose the application even before he consulted the 1st respondent’s Attorneys of record.
Further that as the applicant admits, he remains in arrears and has no defence against the claim made in terms of the provisions of the Hire-Purchase Agreement which effectively entitles the 1st respondent to the order which it holds.
In this present application the applicant is represented by Mr. Tsenoli and the respondents by Mr. Mpaka. After the pleadings were closed, it was agreed that Counsel for the parties would prepare and submit their heads of argument and would not address the Court orally with the rider that in the event the Court felt the need to hear them on any issue it would call them to address it on same. The heads of argument were duly submitted as agreed.
With respect to the issue of want of urgency raised by the respondents, Mr. Tsenoli made the submission that there is no Rule that states that Counsel has to verify the facts upon which he certified the application to be urgent nor to make any investigations into the facts and circumstances, as that would be to ask too much from legal representatives who only act on behalf of their clients on their mandate. That at any rate on the 25th January 2011 when the applicant went to consult him he went in search of the Court’s file to verify the status quo before he could take any action.
Further that on the strength and basis of the Court Order obtained by default and received by the applicant on the 24th January 2011, he bona fide believed the matter to be urgent as the order has a final effect operating immediately at it sought to remove the applicant’s machine upon sight. That the machine is used by applicant in its daily business operations and the latter would be adversely affected by its removal. Further that the 2nd respondent could execute the Court Order anytime which would be prejudicial to the applicant if the normal periods of service were to be followed as it would suffer irreparable harm by its removal.
On non-disclosure, Counsel for the applicant made the submission that the averment that the applicant is not in possession of the said machine goes against the terms of the Court Order which states that it be removed from respondent’s (applicant herein) possession or from any person who may be found in possession thereof. He added that this clearly shows that the 1st respondent knew that the machine was in the possession of the applicant as a matter of fact.
He adds that the averment that the machine is in Bloemfontein is not contained in the founding affidavit and is the story of the 1st respondent in his answering affidavit so that it is the latter’s own manufacturing and is non-suited as a point in limine. That a point in limine properly taken attacks the founding papers and enjoins the Court to dismiss the application by only listening to the story of the applicant as having established no case at all, not for the respondent to introduce its own evidence to kill the applicant’s claim under the disguise of a point in limine.
Further that the 1st respondent applies for the application to be dismissed with costs on the attorney and client scale without advancing cogent reasons thereof, except to rely on the alleged agreement of the parties which relates to the Hire-Purchase whose clause refers to the action that has been instituted by the 1st respondent not in the rescission application where the latter obtained judgment by default and without notice to the applicant.
It was also Mr. Tsenoli’s submission that the applicant does not have to show prospects of success as those are determinable in the main application but only has to show that he has a bona fide defence especially where on the written agreement the 1st respondent failed to act in terms thereof in seeking the Court Order. That the admission of the debt and arrears does not take away the defence as that has been rectified by payment of the substantial sums before the applicant could be confronted with the Court Order on the 24th January 2011 when the 1st respondent and his lawyers were aware that he had been paying at their offices.
With respects to the merits, it was Counsel’s submission that the Court may in addition to any other power it may have, mero motu or upon application of any of the party affected, rescind or vary an order or judgment in terms of the provisions of High Court Rule 45 (1). That in terms of sub-rule (4) thereof nothing in the rules shall affect the rights of the Court to rescind any judgment on any ground on which a judgment may be rescinded at common law.
That the failure by the 1st respondent to respond to annexure “TJT” for the reason that it is not attached is a mystery because the applicant annexed “TJT 1” whose contents, as well as the minutes in the Court file surprised him because the matter was set down for the 24th September 2010 per the application papers in the main and that he did attend Court on that day and waited until the afternoon for the matter to be called before he returned home. That the service was an ambush on the applicant because there is no Rule of Court that allows the respondent to be given a day or less notice and the application to be moved on the following day.
Further that the applicant was never informed of the date of the 28th September 2010 which does not appear in any process served upon him so that judgment was granted by default on the date only known to the 1st respondent. That judgment may only be given when the matter has been properly placed on the roll and not otherwise as it has been stated in inter alia, the cases of Sivundla v Johns 1910 EDL 212 and that of Van der Post v Magistrate of Reheboth 1924 SWA 86.
That the applicant avers that the agreement between him and Mr. Buys was that the matter would be withdrawn and the applicant would pay monthly instalments at their offices before the end of every month which he did in terms of the attached receipts. That it was on the basis of that agreement that he bona fide believed that the matter would not be proceeded with especially since he was never told of the 1st respondent’s rejection of his offer to continue with payment of the instalments in the manner that he has stated.
It was also Mr. Tsenoli’s submission that the applicant kept on paying his instalments religiously since September 2010 only to be confronted with the Court Order on the 24th January 2011 and it is not clear why he was not served with it immediately after it was obtained in September 2010. He added that in terms of decided cases such as Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 and Brown v Chapman 1928 TPD 320 inter alia, the applicant in an application for rescission need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour. That he need not even show the probability of success on the merits as it suffices if he shows the existence of a prima facie case or of an issue which is fit for trial. In this regard Mr. Tsenoli made reference to the decision in Kritzinger v Northern Natal Implement Co. (Pty) Ltd 1973 (4) SA 542.
Further that in terms of Clause 11 of the Hire Purchase Agreement, in the event of the applicant failing to pay any amount due, the 1st respondent is to claim immediate payment of the full amount and cancel the agreement and not to apply that the goods be attached and placed under its custody on the basis that the said goods will deteriorate because they were bought for the purpose of excavating, digging and quarrying and are bound to deteriorate or depreciate naturally.
In addition, Counsel for the applicant made the submission that as a general Rule, the onus is on the 1st respondent to show that the applicant’s default was willful and that in exercising its discretion the Court is enjoined to have in mind the principle of audi alteram partem so that justice is done between the litigants.
For the respondents Mr. Mpaka submitted that the applicant has to make out his case in the founding affidavit upon which he must stand or fall and not to make a new case in reply. That the applicant’s case is fatally defective for the reason that the facts supporting this application do not found a cause of action either under Rule 27 (6), 45 or even at common law.
Further that the applicant is guilty of material non-disclosure in that he failed to disclose that he acquiesced to the order in an attempt to avoid repossession and as such he was not entitled to adopt an ex parte procedure in terms of which utmost good faith has to observed in that the applicant has to disclose all the facts to enable the Court to reach a just decision.
That for the applicant to succeed in this type of application he first has to justify the ex parte procedure in as much as he bears the onus of explaining satisfactorily his default of appearance, show a bona fide defence and show that the application is not merely for dilatory purposes in terms of the Grant v Plumber case (supra). That, an application brought ex parte and without notice to anyone is either because no relief of a final nature is sought against any person, or because it is not necessary to give notice to the other party.
It was Mr. Mpaka’s submission that the applicant has not shown anywhere in the founding affidavit how enrolling this matter the normal way and giving notice would defeat the purpose of the order or prejudice the applicant save for him to make that bald allegation. Further that the applicant flouted High Court Rule 8 (4) which is couched in mandatory terms by filing it on the 26th January 2011 and moving it on the same day and that this is fatal to the application. In this regard Counsel for the respondents referred the Court to the case of LesothoUniversity Teachers & Researchers Union v National University of Lesotho 1999 – 2000 LLR /LB 52 at 56.
He added that there is also no explanation as to why the application was only filed on the 26th January 2011 when the order was granted as far back as on the 28th September 2010 and that that being the case, service could have been effected as well.
In the same manner as Counsel for the applicant, Mr. Mpaka also outlined the basic requirements that an applicant has to satisfy before he may be granted rescission. It was his submission that the applicant has failed to explain away his default despite his averments to that effect. Further that he has also failed to establish a bona fide defence.
With respectful to the applicant’s explanation why he says his default was not willful, it was Mr. Mpaka’s submission that same is not convincing namely, that the applicant believed the application would not be proceeded with because he entered into settlement negotiations and that he also failed to explain why he did not oppose the application when he was well aware that it was to proceed on the 27th September 2010.
Further that even if the applicant’s assertions were to be believed, namely that he was made to believe same by Mr. Buys’ presentations, the opposing affidavit paints a different picture as the averments contained therein are to the effect that Mr. Buys never promised the applicant that the application would not be proceeded with and/or withdrawn. That it becomes clear that the applicant was keen to pay and avoid repossession as he was aware of his obligations in terms of the negotiation settlement.
On bona fide defence, it was Mr. Mpaka’s contention that in terms of the contents of his founding papers, the applicant became aware of the main application but elected to not oppose it but to settle and he made arrangements to pay and acknowledge his indebtedness and fails to explain why he took that option. Counsel for the respondents made the submission that the reasons advanced by the applicant are designed to simply delay execution as there is no real dispute.
Counsel for the respondents further submitted that per the decision in Davoken Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471, the notion that on order of judgment is erroneously granted when the Court commits an error in the sense of a mistake in a manner of law and that once an applicant can point to an error in the proceedings, he is without further ado, entitled to rescission must be incorrect. He added that this is exactly what the present applicant is attempting to do in this application and that it should be borne in mind that the Court does not have the power to review itself.
Mr. Mpakaadded that as it was held in Nyigwa v Moolman NO 1993 (2) SA 508, that “a judgment has been erroneously granted if there existed at the time of its issue a fact which the judge was unaware, which would have precluded the granting of the judgment, and which would have induced the judge, if he had been aware of it, not to grant the judgment.” It was his submission that the applicant’s application falls short of the above as nowhere have averments to that effect been made or are at least discernable from the facts.
Counsel for the applicant added that acquiescence in a judgment will normally be a bar to an application for its rescission as the applicant has the duty to move the application within a reasonable time. That the applicant’s acknowledgments of payments made in satisfaction of the claim in the light of the order for repossession amounted to such acquiescence especially because the applicant does not deny the debt but only denies the extent thereof in an oblique manner without mentioning the amount still outstanding.
With respect to stay of execution, it was Mr. Mpaka’s submission that same will be granted where ‘real and substantial justice’ requires it or in order to ensure that injustice shall not result. He added that a creditor with a writ in his hand has the weight of the law on his side as he has taken all the necessary steps to get the money by means of due process and to stay same must be the most unusual.
I now turn to deal with the issue whether by moving the application ex parte the applicant flouted the Rules of Court. Herbstein and Van Winsen in the Civil practice of the Supreme Court of South Africa 4th Edition p350 have stated that an ex parte application is one brought without notice to anyone, either because no relief of a final nature is sought against any person, or because it is not necessary to give notice to the respondent.
In the light of the above statement the question for me to determine is whether the relief sought by the applicant in the present case is of a final nature against the respondents. In terms of his prayer 2(a) in the notice of motion the applicant prays for the stay of execution of the Court order of the 28th September obtained by default pending finalization of this application. He also prays for it to rescinded and set aside in terms of prayer 2(b). The order is with respect to certain machinery that the applicant bought on a hire-purchase agreement with the 1st respondent which the latter seeks to repossess in the main application due to the arrears in payment thereof by the present applicant.
In my opinion, where a party seeks stay of execution pending finalization of an interlocutory application and rescission of an order obtained by default whether correctly or wrongly, such a relief is only temporary in nature because its effect is to restore the parties to the status quo ante the default judgment/order to enable them, if he is successful in the application, to argue their respective cases before a final judgment can be granted. I am therefore of the view that the applicant has not flouted the above Rule save for his failure to comply with the time periods prescribed therein which can be remedied by an appropriate order as to costs if the Court deems if fit to so order given the circumstances of this case.
On the submission that the applicant has not shown in his affidavit that enrolling this matter in the normal way would prejudice him save for him to make that bald allegation, the applicant stated as follows at paragraph 14 of his founding affidavit:-
“The matter needs an urgent (sic)attention of this Honorable Court in that the Court order in issue has been served and can be executed at any time. I therefore submit that I would not be afforded substantial relief in due course if the ordinary Rules were followed, as by the time this application is heard and finalized the 2nd respondent would have executed the said court order to my prejudice. I do not have any other alternative remedy save to approach this Honourable Court in the manner I did.”
These have been answered to as follows:-
“The contents herein are denied and Applicant is put to the proof thereof. There is no urgency in this matter as the machine has been lying dismantled in Bloemfontein for the last nine months now.”
Assuming the averment by the deponent to the answering affidavit is true, it is my view that this is not a matter for this Court’s determination at this stage. The real issue is with respect to the repossession of the machine on the basis of the applicant’s indebtedness and inability to pay for it as the case may be. Thus it is my view that the issue of the whereabouts of the machine is for determination in the main application.
With respect to whether the applicant observed utmost good faith by disclosing all the facts to the Court to enable it to make a decision, as it was submitted on behalf of the respondents, the applicant denies that he agreed to the Court granting prayer (2) in the notice of motion in the main application and adds that he went to negotiate a settlement with the 1st respondent’s Attorneys with regard to payment of the arrears.
It is therefore his word against that of the respondent such that for me to determine the correctness or otherwise of what really transpired I have to rely on the entire facts surrounding the case. To that extend the facts reveal and this is common cause that the day the applicant went to the offices of the 1st respondent’s Attorneys he met with Mr. Buys as Mr. Mpaka had came to Court to move the application on behalf of the respondents. It is also common cause that the applicant went to pay the amount of M25, 000. 00 on the 28th January 2010 being the day on which the application was moved and being a different date from the one that appeared on the notice of set down.
Against this background, I am therefore not persuaded that a party can pay so many instalments in terms of a settlement agreement with the 1st respondent’s attorneys and at the same time be agreeable that the machinery that he was paying for be repossessed. It is therefore possible that there was some form of communication breakdown on the terms of the agreement so that the parties were not ad idem with regard to that aspect. It is therefore my view that on a balance of probabilities, the applicant’s story is the more probable especially in light of the fact that it has not been successfully disputed that he was only served with the Court Order in question sometime in January 2011 yet same had been obtained in September 2010. It is not clear to me what could have stopped the respondents from immediately serving him with it if indeed it was obtained per the parties’ agreement.
With regard to the issue of want of urgency, the applicant averred and this has not been successfully denied, except barely, that he was only served with the order on the 24th January 2011 of the removal of the machinery in question. He then approached the Court within a reasonable time to have the said order stayed.
As I have stated above, the 1st respondent makes a bare denial to the assertion made by the applicant that he was not served with the order as soon as it was obtained that is, in September 2010 but was only served with it in January 2011. This is in terms of the contents of paragraph 4 of the answering affidavit. Instead the paragraph contains averments relating to what transpired at its attorneys’ offices when the applicant went to negotiate a settlement. In my opinion for the reason that he was only served about four months after the repossession order was obtained upon which he immediately came to Court, the applicant has successfully established urgency.
I now proceed to deal with the question whether the applicant has satisfied the requirements for an application for rescission which are to show that he was not in willful default, that he has a bona fide defence to the claim and that he has not moved the application for dilatory purposes. These requirements have been stated in a plethora of authorities including that of Grant v Plumber (supra) and E. M Nkhetse v Santam Bank Limited & Others 1982 – 1984 LLR 236 amongst others.
It is also trite that the three requirements must not be considered in a piecemeal fashion. With regard to the first requirement the Court stated as follows in Burton v Thomas Barlow & Sons (Natal) 1978 (4) SA 795 at p 797 C-D:-
“In determining whether or not there is a reasonable explanation for the failure of a defendant …, one cannot fairly apply as an inflexible criterion the standards of a bonus et diligens paterfamilias in the conduct of his own affairs. Some allowance must be made for bona fide errors and omissions. As the cases on the earlier Rules of Court show, fault on the part of the defendant does not preclude relief unless the failure to comply with the requirements… has been intentional or due to indifference or gross negligence.”
To this end the applicant averred that after receiving notice of the application on the 24th September 2010 that the matter was set down for hearing on the 27th September 2010 he went to see Mr. Buys on the said day i.e. the 27th where they discussed the terms of payment as already mentioned. It is my opinion that a litigant who has been served with court papers and decides not to act cannot be seen in the same light as one who in spite of not filing his opposing papers, approaches the other party with the intention to negotiate, succeeds in the negotiations and goes a step further towards fulfilling his obligations in terms of the agreement by making payments. The applicant was therefore in my view not indifferent nor can he be found to have been grossly negligent. I therefore find that he has satisfied this first requirement.
On the question whether or not the applicant has established that he has a bona fide defence, the applicant does not dispute his indebtedness but goes on to show that he has since paid a sizeable amount. The evidence that has been placed before the Court is that at the time the main application was moved the debt in arrears was in the sum of M249, 090.00. The applicant has also averred that he has since paid about five installments inclusive of the one that he paid on the day following the agreement per the attached receipts whose total is in the region of M118, 000.00.
It has not been disputed that he has been paying as he averred. This in my opinion is proof that in terms of the agreement which is common cause, he has been paying. However, the question is whether this constitutes a bona fide defence.
In the case of E. M. Nkhetse v Santam Bank Limited & Others (supra) p 241 the Court per the learned Molai J held that the applicant’s assertions to the respondent’s claim to the effect that he had already paid off more than 80% of the value of the vehicle, the subject matter therein, was not a denial that the amount of R2, 130.39 was owing to the respondent and that it was therefore no defence to the respondent’s claim. In this regard the learned judge quoted with approval the sentiments of the Court in Ngcezulla v Stead EDL 110 at p 115.
For that reason the Court found that the applicant did not have a bona fide defence to the claim in respect of which the1st respondent had obtained judgment against him. He added as follows:-
“The granting of this application will serve no other purpose but to delay 1st Respondent’s claim.”
In the light of the above decision, I should find that the applicant’s acknowledgement of his debt in arrears negates the existence of a bona fide defence on his part, however, because of the agreement between him and the 1st respondent’s attorneys and the fact that it has not been disputed that he has subsequently made so many payments to-date, it is my opinion that it would not be in the interests of justice to deny him the opportunity to be heard. I say so mindful of the Court’s sentiments in the case of Kritzinger v Northern Natal Implement Co. Ltd. 1973 (4) SA 542 at p 546 E-G to this effect:-
“In my opinion where an applicant makes an application for the rescission of a judgment and his affidavit discloses sufficient allegations to enable the court to understand his defence and the circumstances he alleges constitute good cause for his application, then the court should be slow to refuse his application on the grounds that the allegations in the affidavits of the opposing party make it improbable that at any trial his defence will succeed.”(emphasis added)
The Court went on to state as follows per James J. P. (as he then was):-
“Of course, in an extreme case the position might be different: for example where the Court is convinced that the conduct of the defendant is mala fide, ‘and that he has no belief in the justice of his case but is merely alleging a defence to delay enforcement of the plaintiff’s just claim’.”
Coming back to the present case, it is my view that in light of the above remarks and the agreement between the parties the applicant should be given an opportunity to be heard, at least insofar as the issue of the settlement and the consequent payments have been made is concerned because in the ordinary course of things, a settlement usually permanently stays and/or at least has the effect of suspending and/or postponing litigation. In addition, I have already found that the applicant has shown that he was not in willful default so that he has not made this application merely for dilatory purposes but bona fide wishes to defend the claim.
It is on the basis of the foregoing reasons that I accordingly grant this application and set aside the default judgment that I granted on the 28th September 2011. I also order that within fourteen days of the delivery of this judgment, the applicant should file his opposing papers in the main application after which the normal modes and periods prescribed by the Rules of this Court should be followed. Costs will be in the cause.
For the applicant : Mr. P. Tsenoli
For the respondents : Mr. T. Mpaka
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