Welcome to Miltons Matsemela - The Conveyancers
08 Dec 2021


You have probably already heard that Parliament has yesterday voted against the proposed amendment to our Constitution which would have confirmed the government’s right to expropriate without compensation. The votes were 204 in favour of the amendment and 145 against. The requisite two thirds majority was therefore not achieved, and the proposed amendment has accordingly failed. The Constitution will therefore remain unchanged. This is good news.

But where does this leave us? Well exactly where we started – just 3 years down the line with lots of money wasted. Let’s recap:

  1. On 21 December 2018 a draft Expropriation Bill was published for comment. This was intended to become a new Expropriation Act that was in line with our new Constitution.
  2. Substantial public participation was then engaged in, and the government also commissioned reports and appointed a committee to make recommendations.
  3. Late in 2019 a draft Bill was published for comment on amending the Constitution, which would expressly allow a Court to authorize expropriation without compensation.
  4. On 9 October 2020 a second (and slightly amended) draft Expropriation Bill was published again, for comment. The most notable difference between this draft and the previous one, was the proposed types of land that would be earmarked for expropriation without compensation.

In our opinion the Constitution has, since 1994, allowed for expropriation without compensation in limited circumstances and the pending Expropriation Bill of 2020 attempts to give effect to this. This piece of legislation has been running parallel with the constitutional amendment and we expect that the government will now push this piece of legislation through Parliament with greater urgency. The ANC will only need a simple majority to pass this law as it does not require a constitutional amendment.

What do we have to fear from this? The answer is not much! Our new Constitution has since day 1 contemplated expropriation for minimal or zero compensation in limited circumstances. Furthermore, the constitutional requirement that land may only be expropriated for a proper reason, and in terms of a law that applies equally to everyone in South Africa remains. In addition, property can only be expropriated for a public purpose or in the public interest and all relevant circumstances need to be taken into consideration in determining the issue of compensation. The amount of compensation to be paid also needs to balance the public interest and the interests of those who are affected by the expropriation.

Let’s hope that this latest development put’s paid to further attempts to water down the protection of private property rights as enshrined in our Constitution.

For further commentary on the proposed Expropriation Bill of 2020 click here.

01 Dec 2021


A Case Study

Most Deeds of Sale have a mortgage bond clause which is a suspensive condition. Suspensive conditions must be met perfectly and on time, or otherwise the Deed of Sale will become null and void. Most mortgage bond clauses will have a time period in which the buyer must obtain the loan, the amount, and a sentence which says the loan will be on the bank’s normal terms and conditions.

What happens when a mortgage bond is initially granted within the time period, but is withdrawn later? Does the agreement become suspensive again?

In the case Dharsey vs Shelly, Dharsey bought a property and paid a deposit. He had to obtain a mortgage bond. The mortgage bond was granted for the agreed amount, in time, and subject to the bank’s normal conditions. The sale therefore became unsuspensive or final.

While the conveyancing was progressing Dharsey received two unpleasant tax assessments from SARS and realized that his purchase had just become unaffordable. He sent the tax assessments to the bank and asked them to review his financial qualification for the bond. The Bank promptly withdrew his bond. When the sale could not proceed, Shelly cancelled the sale and took the deposit for damages. Dharsey wanted his money back and went to Court. The Court found that once a suspensive condition has been met properly – in this case his mortgage bond – the sale does not become suspensive again if the bond is withdrawn. Therefor a buyer cannot sabotage his sale by getting his bank to withdraw the loan. All that happens is that he is now left high and dry without the ability to pay for the property or give the required guarantee. Such a Buyer will lose his deposit and be faced with a damages claim. Beware of Buyers remorse! Also bear in mind, a buyer who creates additional debt after the granting of a bond but before the registration could also see his bond withdrawn and be in the same trouble.

Andrew Murray
30 November 2021

23 Nov 2021


The relationship between landlord and tenant and the process of eviction can be complex and burdensome, as we all know. Add to that the declaration by the President on 15 March 2020 of a national state of disaster, brought on by a global pandemic, and things have gotten even more challenging.

During these unprecedented times, the courts have still been able to hear and grant eviction orders. However, whilst we have been under lockdown “a competent court may suspend or stay an order for eviction … until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order…”

What this means is that a court has the discretion to grant an eviction order, but to suspend it until lockdown is uplifted in its entirety. i.e. Until the end of level 1! And as we all know, this could mean another 10 years for all we know.

Our recent matter:

We dealt with a matter last year where the Magistrate court granted an eviction. The court however ordered that the eviction order be stayed until the end of alert level 1. As it could not be predetermined when this date would arise, and after nearly a year from the date on which the order was stayed, we approached the court a few weeks ago, for a variation of the eviction order on the following grounds:

  1. That the eviction order was ambiguous; and/or
  2. It could not be regarded as just and equitable to further stay or suspend the eviction order.

This tenant has not paid rent since March 2021!

Ambiguity of the eviction order

In interpreting any court order in the face of ambiguity, a sensible interpretation is preferred to one which undermines the purpose of the document or order. Although it was clear from the order that the court intended that the eviction order be stayed until the end of Lockdown Level 1, it was unclear from the wording of the court order, whether or not the tenants would be required to vacate the property as soon as lockdown level 1 was lifted, and on what date exactly the sheriff would be authorised to evict them.

Considerations of Justice and Equity:

While PIE (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) is aimed at protecting tenants’ unfair treatment at the hands of their landlords, it is not intended to unduly prejudice the owners of properties’ entitlement to the use and enjoyment of their property either. The courts are therefore tasked with having to strike a balance between the rights and interests of the landlord and the tenant.

The court in Port Elizabeth Municipality v Various Occupiers[1] confirmed that in matters brought under PIE, the court is obliged to balance the opposing interests of the landowner, who has a real right inherent in ownership, and the rights of people in need of accommodation. Thus, the term ‘just and equitable’ is a relevant aspect to consider in respect of all parties to eviction proceedings and not just in regard to the interests of those individuals illegally occupying the property.

The intention of PIE is not to expropriate private property. The purpose thereof is instead to delay or suspend the exercise of the owner’s entitlement to the property until such a time that the court has made a determination as to whether an eviction would be just and equitable in the circumstances of the case.

In our matter, we contended that allowing the Respondents to live in the property, which was owned by the Applicant, against their will and without paying rent, had the effect of expropriating the Applicant’s private property beyond what is constitutionally permissible and beyond what can be said to be just and equitable.

The eviction order, as it stood, had the effect of imposing a positive obligation on the landowner to provide free housing to the illegal occupiers of the land. This was not, in our opinion, a display of balancing of what is just and equitable for both parties, and it was submitted to the court that further staying the order would amount to an unjustifiable limitation on the landowners rights in their property.

The court agreed and the tenants are now ordered to leave at the end of January 2022.

23 Nov 2021


SARS has advised us that due to a backlog (brought on no doubt by the Deeds Office having announced its due dates for lodgements in December), we can now expect to wait 14 business days for a response before we may escalate the matter!

This will now result in many deeds not being lodged by 1 December 2021, which is the cut off date to allow registration this year still.

23 Nov 2021


All good things must come to an end.

After 15 months at 3,5 %, the lowest repo rate in our history, the Reserve Bank has decided to raise rates by 0,25%. This means our prime lending interest rate will increase from 7% to 7,25%.

What does this mean for homeowners who owe on their bonds? Well on a bond of R1 000 000 at prime over a 20-year term the monthly installment will increase by R150.

Not great news with the festive season upon us, but the rate is still remarkably low.

17 Nov 2021


“The future of money is digital currency” as Bill Gates put it, and certainly interest in crypto currencies – like Bitcoin, Ethereum, Polkadot, Solana and the many others popping up all the time – is surging dramatically.

Of growing importance therefore is that anyone holding or planning to buy cryptocurrency needs to understand the tax angle, and by way of an updated warning to keep up to speed on this we point you to SARS’ new webpage on the subject for a “from the horse’s mouth” take on the whole question.

SARS addresses questions such as what a crypto asset is, whether tax needs to be paid, how it will work (with an example of the 2020/21 tax year ITR12 Tax Return), and how it traces crypto asset transactions.

“The future of money is digital currency” (Bill Gates)

If you are thinking of buying – or have bought – any “crypto asset” such as a cryptocurrency like Bitcoin, Ethereum, Polkadot, Solana (or any of the many other crypto currencies springing up all over the place), be aware of the tax implications.

As a start, read the new SARS webpage “Crypto Assets and Tax” here, first published on 27 August 2021 and providing guidance on (at date of writing – expect this webpage to evolve!) these questions –

  • What is it?
  • How did we get here?
  • Do I need to pay tax on crypto assets?
  • How will it work? (With an example of the ITR12 Income Tax Return for the 2020/21 tax year)
  • How is SARS tracing crypto asset transactions?

    There are still grey areas here – and many pitfalls – so be sure to take specific professional advice!

17 Nov 2021


The Covid-19 virus is unlikely to leave us in peace and safety anytime soon, and the resulting economic disruption continues to pummel businesses of every sort and size.

So for most business operations, fully-vaccinated workforces are doubtless high on the agenda. If you are one of them, you will be wondering whether you can make vaccination compulsory in your workplace.

As an employer you are left walking a tightrope between a whole range of (often conflicting) rights and duties. We analyse government’s recent “Direction” on the issue, focussing on 5 areas of particular importance in a bid to help you with your decision making here…

“Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds” (Ministry of Employment and Labour)

As the Covid-19 pandemic continues to wreak havoc around the world, an increasing number of businesses find themselves walking a tightrope between their obligations to, on the one hand, both protect the public and provide a safe and healthy workplace, and on the other hand to respect the individual constitutional rights of employees to make their own choices in matters of bodily and psychological integrity, religion, belief and opinion.

These deeply conflicting rights and obligations have left employers asking themselves questions like: “Must we insist on our employees having the vaccination to protect their colleagues, our visitors, our customers and the public at large?” and “If so, can we actually force unwilling employees to get jabbed or are we in for unfair practice or wrongful dismissal claims?”

The Minister’s “Amended Consolidated Direction”

On 11 June 2021 the Minister of Employment and Labour issued an “Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces” under the National Disaster Regulations in an attempt to address those questions.

The Direction is long, detailed and complex, setting out a host of “minimum measure” requirements for workplace safety during the pandemic, so specific professional advice is essential here. But in a nutshell there is now an official guideline for employers wanting to make vaccination compulsory or partially compulsory. At a minimum, comply with all these specified obligations –

  1. Undertake a risk assessment

    This risk assessment (supposed to have been completed by 2 July 2021) was to determine (a) whether vaccinations were to be made mandatory considering the “operational requirements of the workplace” and if so (b) who was to be compulsorily vaccinated, taking into account the risk of transmission to employees through their work and their risk for severe Covid-19 disease or death due to their age or co-morbidities.

    In assessing whether or not your particular workplace needs a mandatory vaccination policy, include factors such as the ongoing requirement to enable employees to work from home where possible (still applicable even under Adjusted Level 2), the nature of the work in question, whether adequate ventilation is possible, whether adequate social distancing measures are possible and so on – the list is endless.

    As regards that 2 July deadline, it seems likely that many (perhaps most) employers missed it. If you are in that boat, what should you do now? There is no clear guidance on that, but the consensus of expert opinion seems to be that you should still comply, as soon as possible.

  2. Develop or adjust a vaccination and protective measures plan

    Based on the risk assessment, this plan must outline both what protective measures you have in place, and what vaccination measures you intend to implement.

  3. Consult on the risk assessment and plan

    Consultation must be with any representative trade union and any health and safety committee or representative. We should discuss under this heading also the questions of communication, education and training. We all know that together with some rational and valid concerns, there is an avalanche of fake news around Covid-19 and vaccinations. Inform your employees fully of their rights, help them to distinguish fact from fake, address their individual fears and concerns, explain the benefits of your plan to everyone, and strive for consensus.

  4. Make the plan available

    The plan must be available to an Occupational Health and Safety Act inspector and to the person/s listed in point 3 above.

  5. Other requirements and factors

    No list of this nature can ever be comprehensive but consider factors such as paid time off and transport to vaccination sites, sick leave for employees who suffer side-effects, counselling for “vaccine hesitant” employees and the like. There are also defined procedures to be followed when employees raise medical or ethical objections to being vaccinated (for example, the employer may need to try to find an alternative position in the business for such an employee).

And of course every workplace will be different, which leads us to …

The bottom line

There is talk of workplace vaccination being officially made compulsory either across the board or in certain sectors, whilst media reports suggest that an increasing number of large employers are already implementing compulsory vaccination policies on the basis of legal advice received. There is also much speculation that our courts will support dismissal of employees who refuse vaccination in appropriate cases, and there is even a report of a High Court Judge insisting on either proofs of vaccination or negative PCR tests “for the general well-being of all parties in attendance at court”.

Bear in mind however that every situation, every workplace, and every employee will be unique – and with the high stakes involved, tread with extreme care and only after taking professional advice.

17 Nov 2021


When you sell your house (or indeed any other property) you are almost certainly dealing with a transaction of major financial importance to you.

You will therefore want to do everything you can to ensure a smooth and professional transfer process, with the purchase price being paid out to you as soon as possible.

First step in achieving that is choosing the right conveyancer (transferring attorney) for the job. We discuss why every transfer needs to be carried out by a conveyancer, why you as Seller do the choosing, how you should go about making your choice, and why you should bring your chosen conveyancer into the sale process from the very start.

“A great deal is at stake in the transfer of fixed property. It is generally the largest single asset that a person owns and the transaction for the purchase or sale of a fixed property is probably the most important contract undertaken by individuals” (Law Society of South Africa)

For many of us, our home is our most important asset so when it comes time for us to sell, do everything possible to ensure that your interests are fully protected, that the sale goes through quickly and smoothly, and that you are paid without unnecessary delay.

Appointing the right conveyancer is key here. Let’s have a look at the “Why, Who, How and When” of it…

Why do I need a conveyancing attorney?

Legal ownership in “immovable” or “fixed” property (that is, land and permanent attachments such as buildings) can only be transferred from seller to buyer through a formal registration process in the Deeds Office. This is carried out by specialist attorneys who have been admitted to practice as conveyancers.

Who appoints the conveyancer, and how?

As the seller, it is your right to choose which conveyancer will carry out the transfer.

The agreement of sale (it may be called an “Offer to Purchase”, “Deed of Sale” or similar) should contain a clause specifying the conveyancing (or “transferring”) attorney. Make sure you fill in your chosen attorney’s name and details in the space provided, and do not allow anyone else to dictate to you who to use!

You may occasionally come across an offeror/buyer wanting to appoint their own attorney for one reason or another, perhaps with the argument that because they are paying the transfer costs (which include the conveyancer’s fees), the choice should be theirs. But the fact is that you carry more risk, and there is nothing to stop the buyer from employing another attorney to monitor the transfer on their behalf if they really feel this necessary.

Bottom line – stick to your guns! This is your house at stake, so the choice is yours, and yours alone.

How to choose the right conveyancer

Your choice here is critical. You need to appoint someone you can trust to handle the process with the utmost professionalism –

  • Speed will be important to you (“time is money”!), and whilst a certain amount of delay is inevitable (there are lots of formalities and red-tape requirements involved), a pro-active and committed conveyancer will keep delays to a minimum.
  • Communication: Progress updates should be regular and timely, keeping you in the loop at every step of the process.
  • Attention to detail is also vital. Conveyancing is a specialised field, calling for meticulous compliance with a host of rules and regulations. Moreover every sale agreement will be different, and its precise terms and conditions must be complied with.
  • Cybersecurity has become a major issue in recent years, particularly around the question of email integrity. You will need to play your part here too (to take just one example, don’t ever take at face value an email purporting to come from your attorneys “advising you of our new banking details”), but knowing that your chosen firm of attorneys has security protocols in place is critical to resting easy that the purchase price will indeed end up in your account.

The need for scrupulous integrity goes without saying – a lot of your money will be at stake here!

When should I bring my attorney into the sale process?

Ideally, from the very start. When you first decide to sell, you will find it invaluable to have your attorney’s advice on how to go about it, whether you should speak to an estate agency, how best to market your property, what pitfalls to avoid and so on.

When it comes to the agreement of sale itself, a myriad of things can go wrong if the contract isn’t professionally drawn to be clear, concise, legally enforceable and configured to protect your interests. So if you are presented with an offer or agreement drawn by someone else, take legal advice before you agree to anything!

17 Nov 2021


Many South Africans want to have dual citizenship – perhaps to work and live overseas, perhaps for travel, perhaps for some other reason.

Be very careful here! As a recent High Court judgment has confirmed, you must have formal Ministerial permission before you apply for foreign citizenship. Drop the ball on that one and you will suddenly wake up to find that you have lost your South African citizenship. And once lost, it isn’t easily regained.

Read on for the details – how the loss of citizenship happens (with a note on a few exemptions), why it happens, how you can prevent it happening, and what you can do if it has already happened.

“… it cannot be said as the applicant suggests that the loss of citizenship takes place without notice and automatically as the citizen in that position has proper notice through the structure of the section of both the opportunity to seek consent to hold dual citizenship and the consequences of acquiring a second citizenship without obtaining such permission. It therefore is not a secret provision but one that every citizen who voluntarily seeks to acquire another citizenship should ordinarily acquaint themselves with” (extract from judgment below)

Note: Many South Africans who need to be aware of this risk will be overseas and/or may not have heard of the High Court decision we discuss below. If you know of any such person, please consider forwarding this to them as soon as possible.

A recent High Court judgment has confirmed that you will lose your South African citizenship if you apply for citizenship of any other country without prior Ministerial permission.

It is irrelevant whether you are South African by birth or not. It is also irrelevant why you want to acquire dual citizenship – perhaps you are living/working overseas, perhaps you want a second passport just to make travelling easier, perhaps you have financial reasons.

How and why you lose your South African citizenship

Dual citizenship itself is allowed, but our Citizenship Act provides that if “by some voluntary and formal act” you acquire citizenship or nationality of another country, you are deprived of your South African citizenship. And Home Affairs is interpreting that to mean that you have voluntarily given up your South African citizenship by your own “formal act” of applying for foreign citizenship.

You are exempt only if …

This loss of citizenship does not apply to –

  1. Minors (under 18 years of age) and
  2. Acquisition of another country’s citizenship by marriage.

How to retain your South African citizenship

The good news is that you can apply through Home Affairs for authority to retain your SA citizenship – but your application must be approved before you acquire your second citizenship.

The bad news is that it takes time, so don’t leave it to the last minute! Even before the pandemic, processing time was given as “3 to 6 months” and media reports suggest that delays are now much longer, although perhaps the publicity surrounding the High Court case in question will assist in improving the situation. If you are overseas, you should find the necessary forms and instructions on your local SA Embassy/Mission/Consulate website.

You’ve lost your citizenship – what now?

This is very much second prize, but you can still apply to get your citizenship back –

  • If you were a citizen by birth or descent you can apply for reinstatement only if you have returned to, or are living in, South Africa permanently (you still have permanent residence, you just aren’t a citizen).
  • If you were a citizen by naturalisation, you must re-apply for permanent residence or apply for exemption thereof, before you can be considered for resumption of citizenship.
  • If all else fails, consider taking the legal route. As we discuss below, the High Court has recently held that the relevant provisions of the Citizenship Act pass Constitutional muster, but there is talk of a possible appeal.

High Court: Choose how important your citizenship is to you, and know the law

There has always been speculation that this section of the Citizenship Act could be held to be unconstitutional. However, in rejecting a recent application to that effect by the Democratic Alliance, the High Court has confirmed that it passes constitutional muster and is not “irrational”.

The High Court’s reasoning was that “It is ultimately a matter of personal choice what weight each of us attaches to the idea of our citizenship”, and that this is not a case of automatic loss of citizenship without notice but rather it “is really about personal and individual choices people make about their future and often choices come with consequences.”

The section in question, held the Court, is “not a secret provision but one that every citizen who voluntarily seeks to acquire another citizenship should ordinarily acquaint themselves with … while it may be arguable that citizens cannot be expected to know every feature of the law, those citizens involved in migration and relocation to other countries with the possibility of acquiring citizenship there must surely be expected to acquaint themselves with the law in that area of activity they are involved in.”

There is talk of an appeal but for now at least, if you have already lost your citizenship your options are limited to those set out above.

P.S. Never let your SA passport lapse!

Although you can travel freely around the world on your second passport, Keep renewing it!

30 Jun 2021

Buying Property from a Company – Should You Buy the Shares or the House?

Buying the house of your dreams presents you with much excitement but also with a number of choices.

For example, if the property is held in a company the seller might offer you the choice of buying the company shares. That way you effectively get ownership of the house without all the delay and cost of a regular property transfer. What should you do?

We discuss some of the main factors you should consider, and also address the old question of whether you could save yourself a bundle of money by avoiding transfer duty.

We end off with a note on buying property from a trust.

“There is never a wrong time to buy the right home” (Anon)

You find the house of your dreams, agree on the price and get ready to put pen to paper. The house is in the name of a company, and you are offered a choice – either buy the house out of the company or take over the company (which owns the house and nothing else) by buying the shares and thus avoid the delay and cost of a normal property transfer and registration in the Deeds Office.

What should you do? There are a host of both practical and legal factors to consider before deciding. Holding property in a company can come with significant advantages, but there can also be major disadvantages, so professional advice specific to your own circumstances is a no-brainer here.

Some of the many factors you should consider are –

  • Tax and estate planning considerations. These are complex and no two cases will be identical, but consider the higher capital gains tax rates payable by companies (and the annual exclusion and “primary residence exclusion” of R2m for individuals), the differential income tax rates, possible VAT considerations, your own estate planning circumstances (including the estate duty angle) and the like.
  • Asset protection. Particularly if you run your own business or are in a profession at significant risk of litigation, it may be important to you to protect your major assets (like your house) from possible attack by creditors. Any assets held in your own name will be a natural target if you run into financial problems, whilst those held in another entity like a company or trust will generally be much harder to attack. Complicated multi-level structures such as having a trust owning your company’s shares have generally fallen out of favour for a variety of reasons, but you may still be advised to consider one in your particular situation.
  • Joint ownership. Joint ownership of property comes with its own set of risks and issues, and depending on your needs you might be advised to address them with a company/shareholder structure.
  • Costs and simplicity. Running a company comes with extra costs (accounting/auditing, statutory costs etc), formalities and responsibilities, getting a bond in your own name is likely to be a simpler process than taking it in a company, and so on.
  • The hidden risks. When you buy a company’s shares you get the company as it is, with all its assets and liabilities. If the seller is in any way unreliable, you could find yourself losing the house to an undisclosed company liability that suddenly crawls out of the woodwork. Suretyships are a particular danger here – there is no central register of suretyships you can refer to, and it is common for groups of companies and other entities in particular to sign cross-suretyships without necessarily keeping a record of them all. These are risks that can be largely managed with proper advice and due diligence, but a residual whiff of doubt is inevitable.
  • Other factors. There will be many other aspects to consider, depending on your circumstances and needs, and on the company in question.

Transfer duty – you pay it either way!

As a buyer you can never lose sight of all the costs you will incur in buying a house, and the “big one” is normally transfer duty. It’s essentially a government tax, payable by you as buyer (unless the property sale is subject to VAT), and it can be a lot of money.

Do not however fall into the old (and surprisingly still-common) trap of thinking that by buying the company you avoid paying transfer duty. That was indeed a commonly used loophole in decades past and it is still sometimes referred to. But in reality that all changed many years ago, and (subject to what is said below) you should budget to pay transfer duty as set out in this table –

Transfer Duty 1 March 2021 to 28 February 2022

Source: SARS “Budget Tax Guide 2021

So for example if you buy a house for R3m you will pay R146k in transfer duty. Or R916k on a R10m house. Finding a way to avoid or reduce such a cost is an attractive proposition, and indeed until 2002 it was a common way for buyers and sellers to save transfer duty and to instead pay only ¼% “Securities Transfer Tax” – a huge saving.

That loophole closed however many years ago – on 13 December 2002 to be precise – and since then the sale of shares in a “residential property company” (a company with over 50% of its asset value in residential property) attracts transfer duty on the “fair value” of the property. No savings there!

What about “buying” a property-owning trust?

Similarly, before 2002 a common transfer duty avoidance strategy was to hold property in a trust, then to “sell” the trust to a purchaser by substituting him/her as a beneficiary of that trust. That loophole was also closed in respect of beneficiaries holding “contingent interests” in the property – the situation here is a bit more complicated than it is with companies as there are various types of trust you could be dealing with, so specialist advice is essential.

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