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HH112-10 - CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED

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Law of Property-viz vindicatory action re eviction.

Law of Property-viz rei vindicatio re ejectment from immovable property.
Procedural Law-viz pre trial conference re issues for trial.
Procedural Law-viz locus standi re juristic persons iro authority to represent a juristic entity.
Procedural Law-viz pleadings re amendment to pleadings.
Company Law-viz directorship re powers of directors.
Company Law-viz directorship re powers of directors iro holding out.
Company Law-viz proxy.
Company Law-viz shareholders meeting re quorum.
Company Law-viz shareholders meeting re quorum iro valid resolutions passed.
Company Law-viz directorship re meetings of directors iro quorum.
Company Law-viz directorship re quorum of directors meeting iro valid resolutions passed.
Procedural Law-viz rules of evidence re subpoena iro compellable witness.
Procedural Law-viz rules of evidence re subpoena docus tucum.
Procedural Law-viz rules of evidence re subpoena docus tucum iro physical documentary evidence.
Law of Contract-viz ratification.
Procedural Law-viz pleadings.
Procedural Law-viz rules of evidence re irrelevant evidence.
Procedural Law-viz subpoena re competent witness iro a legal practitioner.
Procedural Law-viz locus standi re right to appear before the court iro a legal practitioner who is also a potential compellable witness in the matter.
Procedural Law-viz right to appear before the court re a legal practitioner iro a legal practitioner who is also a possible competent witness in the matter.
Procedural Law-viz founding affidavit re deponent to the founding affidavit.
Procedural Law-viz founding affidavit re deponent to the founding affidavit iro a legal practitioner with an interest in the matter.
Procedural Law-viz urgency re certificate of urgency.
Procedural Law-viz professional ethics.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien

On 9 January 2007 the plaintiff herein instituted proceedings against the defendant by way of summons for an order for its ejectment from three immovable properties.

The defendant filed papers in defence of the claim and in due course the matter was referred to a judge in chambers for the holding of a pre-trial conference. Issues for trial were agreed by the parties at the pre trial conference and thereafter the matter was referred to trial.

Locus Standi re: Approach and the Legal Capacity to Institute or Defend Legal Proceedings

When the matter was called up for trial counsel for the defendant indicated to the court that the defendant had a preliminary issue to be dealt with before the trial could proceed. The submission by counsel for the defendant was that the court should find that it was improper for counsel for the plaintiff to represent the plaintiff in the suit.

The first point raised on this aspect was that after the defendant had entered appearance to defend it had, in its plea, taken issue with the authority of those persons seeking to represent the company in the suit and that the issues at the pre-trial conference had captured this as a point of contention between the parties to be resolved at the trial. An amended plea filed by the defendant has the following allegations in relation to the alleged lack of authority -

1. That a Mr. Viera who has purported to institute these proceedings has not been authorised by the plaintiff to bring the current proceedings.

2. That, in any event, no resolution has been passed by the plaintiff's current Directors to bring a claim against the defendant because defendant is not in occupation of the premises in question.

3. That the premises in question are lawfully occupied by the current Directors and Shareholders of the plaintiff and that plaintiff cannot seek its own eviction as there is no cause for such action.

At the pre-trial conference one of the issues for trial was recorded as follows -

Has Mr. Viera transferred his shares and Directorship to the defendant or its representatives?

The contention by counsel for the defendant is that the question of who the Directors and Shareholders of the plaintiff are is of the moment in the resolution of the dispute between the parties as the actions of the company are directed by the Shareholders through its Directors. He contends, further, that as of the 14th June 2007 the defendant's nominees had been appointed as Directors of the plaintiff and were making decisions on behalf of the plaintiff. According to counsel, this court had already made a factual finding on this in a judgment by CHATUKUTA J in Central African Building Construction Co. (Pvt) Ltd v Construction Resources Africa (Pvt) Ltd HH37-09. At p4 of her judgment, the learned judge stated as follows -

“...,. As from the time the Agreement of Sale was concluded the respondents were running the affairs of the applicant. The applicant was aware that the 2nd and 3rd respondents were holding themselves out as its Directors. In Case No. HC109/07 the 2nd and 3rd respondents pleaded that they were the applicants Directors.”

It is clear that the court did not, in that case, conclude that the respondents therein were Directors of the applicant but that they were holding themselves out as Directors. It is obvious, therefore, that the issue of the Directorship of the plaintiff herein is central to the resolution of the dispute in the main claim. The actions of counsel for the plaintiff for and on behalf of the company therefore assume importance.

Counsel for the plaintiff accepted the contention by counsel for the defendant that the issue of who the Shareholders and Directors are is for the determination by the trial court and contended that the Shareholders nominate the Directors.

Directorship re: Approach, Powers, Boardroom Disputes and Collective Responsibility

The complaint against counsel for the plaintiff is linked to the following events.

After the pre trial conference, Mr. Viera issued a proxy to counsel for the plaintiff, who, on the basis thereof, called a meeting of Shareholders attended only by himself, and at which a resolution was issued by himself appointing himself as Director of the plaintiff. Consequent upon that appointment, counsel for the plaintiff, in the capacity of Chairman of the Directors meeting, then issued a resolution which sought to ratify the institution of the proceedings before me. The meeting also sought to declare the appointment of the defendant's nominees as Directors as being null and void. The contention, therefore, is that counsel for the plaintiff was a participant in further happenings that purported to have a bearing on the issues before the court.

Subpoena re: Subpoena Duces Tecum or Judicial Order for the Production of Documents and the Rule of Relevance


The defendant has considered issuing a subpoena docus tucum for the production of minute books.

Subpoena Ad Testificandum or Witness Summons re: Competent Witness iro Officers of the Court & Judicial Support Staff

The defendant has further considered issuing a subpoena for counsel for the plaintiff to testify on the circumstances surrounding the various acts supposedly done on behalf of the plaintiff by him.

Counsel for the plaintiff has contended that he would not call himself as a witness and that it would be improper for the defendant to subpoena him as such. He argued that the summary of evidence clearly revealed the evidence that is sought to be led on the part of the plaintiff and he is not one of the witnesses.

At para 68, p156, LEWIS in his book Legal Ethics says -

“In Supreme Court actions, the entry of an attorney into the witness-box is by no means uncommon; either because the evidence he has to give, though expected ab initio, was of a formal nature only (i.e. not a grave part of the main contention rendering withdrawal essential) or because events from the initiation of proceedings up to trial were not so patterned as to avoid the need for his evidence. In such circumstances, it may become the duty of the attorney to give evidence – and if counsel finds it necessary to call him. He certainly must not seek to avoid testifying – even to hint to the client that he would rather not give evidence would be reprehensible. The suggestion is made earlier in this paragraph that evidence of the attorney which is a grave part of the main contention might render it essential that he did not act. The reason for this and the picture presented will be plain to any practitioner experienced in the handling of Supreme Court litigation...,. In those circumstances, that attorney should certainly not act as attorney for the defendant in the action brought by the corporation. He is far too near the matter to exercise the necessary judgment in advising a client respecting the conduct of the suit let alone its possible settlement.”   

It seems to me that the contention of the defendant that the conduct of counsel for the plaintiff, after the pre-trial conference, was such that it has contemplated serving him with a subpoena has merit.

This court has wide powers in regulating the conduct of the legal practitioners over which it has jurisdiction. The powers reposed in the judge is not just to control and direct the proceedings but also to ensure, at the end of the day, that justice is done to all parties to the dispute. Where, therefore, in circumstances where the actions of a legal practitioner may be such that he may be called as a witness, as may happen in this case, it would be undesirable, and indeed, not in the interests of justice, if a legal practitioner who should be an important witness in the matter in hand is allowed to act for the party to the dispute. It is important that the legal practitioner should, at all time, retain his independence in relation to his client and the litigation which is being conducted. If he is to give important evidence in the circumstances where his credibility may be called into question, his independence as a professional adviser to his client in the matter may be affected. If he is to testify as a witness he acquires an interest in the matter which may make it difficult for him to discharge his professional duty to his client, and to this must be added the fact that his impartiality may be suspect due to his being a legal practitioner for one of the parties to the dispute. The authors HOFFMAN & ZEFFERT 4th ed in their book The South African Law of Evidence state..., -

“The attorney or counsel acting for a party is also not an incompetent witness, but it is similarly undesirable that he should give evidence on anything which is a matter of controversy since this might indicate a degree of partisanship incompatible with his duty to the court.”

In assuming the mantle of his clients and accepting the proxies by which he then held meetings and passed resolutions that had a direct bearing on matters in hand, counsel for the plaintiff clearly showed a partisanship with the case of the plaintiff in a manner that is incompatible with his duty to the court. If he is called to give evidence this would be irregular indeed as a legal practitioner is instructed to advise his client; and he cannot be a legal adviser and a witness. He can only assume one role – not both.

In the premises, in view of the involvement by counsel for the plaintiff in matters of the plaintiff which have a direct bearing on this trial, it would, in my view, be irregular for him to continue acting for the plaintiff. It would, I believe, not be in the interests of justice. I therefore accede to the application by the defendant and I direct that counsel for the plaintiff stop acting for the plaintiff in this trial.

The application is therefore granted as prayed.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach


Counsel for the plaintiff submitted that at the pre trial conference the defendant had belatedly raised, for the first time, the issued that the plaintiff's representatives, namely Viera Senior and Viera Junior, were no longer Directors.

Irrelevant Evidence, Speculative Evidence, Character Evidence, Implausible or Improbable Evidence and Rule of Relevance

The further contention by the defendant is that it would wish to adduce evidence that the unauthorized conduct of Wintertons in instituting proceedings on behalf of the plaintiff was ratified through a resolution passed by counsel for the plaintiff.

Counsel for the plaintiff confirms that after the pre-trial conference there was an Annual General Meeting held to ratify the actions of Wintertons in instituting the action. Counsel for the plaintiff is of the view that that meeting, contrary to the assertions of counsel for the defendant, is not vital to the issues before this court.

Practicing Certificates and Right of Audience before Courts re: Approach, State Functionaries and Judicial Interference

In Bozimo & Development Co. (Pvt) Ltd v First Merchant Bank of Zimbabwe & Ors 2000 (1) ZLR 1 CHATIKOBO J, in considering an objection to the appearance as counsel in the matter before him by a Chairman of the applicant opined that due to the relationship of the legal practitioner of the applicant with the myriad affairs of the companies that he was Chairman of, and with whose legal brief the legal practitioner was seized, he would not permit him to appear for the same as counsel but would allow him to appear as an agent of the applicants.

In our jurisdiction, a legal practitioner is an officer of the court, and as such the court has jurisdiction over the said legal practitioner, and, in the event that it is established that the legal practitioner has performed acts or actions that are inconsistent with the legal practitioner's duty to the court then it is within the power of the court to sanction such legal practitioner.

In the case before me, there can be no talk of a conflict of interest on the part of counsel for the plaintiff. There is, however, clear evidence on his part of a breach of his duty to the court. He has always acted as the legal practitioner for the plaintiff in relation to its dispute with the defendant's representative. A the pre trial conference in June 2007 he was aware that the most burning issues for determination in the trial related to the shareholding and to the Directors of the company.

A legal practitioner's duty is to protect the interests of his client and to give legal advice. It is not the function of the legal practitioner to then step into the shoes of the client and perform, on behalf of his client, acts that are materially related to the dispute before the court in an endeavour to buttress the case of his client. This is especially reprehensible when one takes into account the fact that the question of the plaintiff's authority to institute the current proceedings had been raised with counsel for the plaintiff; and he was aware that this alone could damage the success of the plaintiff's claim. Notwithstanding this fact, and his knowledge, and more importantly, his duty to the court, counsel for the plaintiff had the temerity to hold a meeting attended only by himself as Director of the company and at which meeting he issued a resolution in terms of which his actions as a legal practitioner in instituting the proceedings were ratified by himself.  In addition to this, a resolution passed by counsel for the plaintiff, under the guise of Director of the plaintiff, sought to nullify the appointment of the defendant's nominees as Directors. Whether their supposed appointment was irregular or not was not an issue that he was empowered, as a legal practitioner, to deal with legally. This particular action, if true, would cast a very serious light on the conduct of counsel for the plaintiff as a legal practitioner, especially in light of the surrounding circumstances of this case; taking into account that that was one of the issues for determination at the trial. Even if it had transpired that the appointment had been irregular, for a legal practitioner to then don his client's mantle and rectify the irregularity by nullifying the appointment amounts to serious misconduct. As was said by WESSELS JA in Robinson v Van Hulsteyn & Ors 1925 AD12..., -  

“According to our law, a solicitor is an officer of the Court; the Court exercises jurisdiction over him and will see that in the conduct of his professional work he displays towards the Court and towards his clients a very high standard of conduct.”

The conduct of counsel for the plaintiff towards the court cannot, in the instant case be described as being of a very high standard. He has aligned himself so closely with his client's case that this court can be forgiven for stating that he has displayed an interest in the case going beyond that of a legal practitioner.

Founding, Opposing, Supporting and Answering Affidavits re: Deponent, Representative Authority & Affidavit of Collegiality

In HH37-09, an application brought by the plaintiff against the defendant, for an interdict, the founding affidavit was deposed to by counsel for the plaintiff in his capacity as a Director of the plaintiff. I wish to associate myself with the views of CHEDA J in Chafadza v Edgars Stores Ltd & Anor 2005 (1) ZLR 299..., to the following effect -

“To my mind, it is highly undesirable to either attest to an affidavit or sign an urgent certificate for and on behalf of a client who is being represented by his firm as such lawyer clearly has an interest in the matter at hand.”

GOWORA J: On 9 January 2007 the plaintiff herein instituted proceedings against the defendant by way of summons for an order for its ejectment from three immovable properties. The defendants filed papers in defence of the claim and in due course the matter was referred to a judge in chambers for the holding of a pre-trial conference. Issues for trial were agreed by the parties at the pre-trial conference and thereafter the matter was referred to trial. When the matter was called for trial Mr Uriri on behalf of the defendant indicated to the court that the defendant had a preliminary issue to be dealt with before the trial could proceed. The submission by Mr Uriri was that the court should find that it was improper for Mr Paul to represent the plaintiff in the suit.

            The first point raised on this aspect was that after the defendant had entered appearance to defend it had, in its plea, taken issue with the authority of those persons seeking to represent the company in the suit and that the issues at the pre-trial conference had captured this is a point of contention between the parties to be resolved at trial. An amended plea filed by the defendant has the following allegations in relation to the alleged lack of authority:

 

1.                That a Mr Viera who has purported to institute these proceedings has not been authorized by plaintiff to bring the current proceedings

2.                That in any event, no resolution has been passed by Plaintiff's current directors to bring a claim against the defendant because defendant is not in occupation of the premises in question.

3.                That the premises in question are lawfully occupied by the current directors and shareholders of the plaintiff and that plaintiff can not seek its own eviction as there is no cause for such action.

At the pre-trial conference one of the issues for trial was recorded as follows:

 

Has Mr Viera transferred his shares and directorship to defendant or its representatives.

 

 

The contention by Mr Uriri is that the question of who the directors and shareholders  of the plaintiff are is of the moment in the resolution of the dispute between the parties as the actions of the company are directed by the shareholders through its directors. He contends further that as of the 14th June 2007 the defendant's nominees had been appointed as directors of the plaintiff and were making decisions on behalf of the plaintiff. According to counsel, this court had already made a factual finding on this in a judgment by CHATUTKUTA J in Central African Building Construction Co (Pvt) Ltd v Construction Resources Africa (Pvt) Ltd HH 37/09.  At p 4 of her judgment the learned judge stated as follows:

 

 

'…………….As from the time the agreement of sale was concluded, the respondents were running the affairs of the applicant. The applicant was aware that the 2nd and 3rd respondents were holding themselves out as its directors. In Case No HC 109/07 the 2nd and 3rd respondents pleaded that they were the applicant's directors.”

 

 

It is clear that the court did not, in that case, conclude that the respondents therein were directors of the applicant but that they were holding themselves out as directors. It is obvious therefore that the issue of the directorship of the plaintiff herein is central to the resolution of the dispute in the main claim. The actions of Mr Paul for and on behalf of the company therefore assume importance.

The complaint against Mr Paul is linked to the following events. After the pre-trial conference, Mr Viera issued a proxy to Mr Paul, who on the basis thereof called a meeting of shareholders attended only by himself and at which a resolution was issued by himself appointing himself as director of the plaintiff. Consequent upon that appointment Mr Paul in the capacity of chairman of the directors' meeting then issued a resolution which sought to ratify the institution of the proceedings before me. The meeting also sought to declare the appointment of the defendant's nominees as directors as being null and void. The contention therefore is that Mr Paul was a participant in further happenings that purported to have a bearing on the issues before the court and that the defendant has considered issuing a subpoena docus tucum for the production of minute books and to testify on  the circumstances surrounding the various acts supposedly done on behalf of the plaintiff by him. The further contention by the defendant is that it would wish to adduce evidence that the unauthorized conduct of Wintertons in instituting proceedings on behalf of the plaintiff was ratified through a resolution passed by Mr Paul.

 

      Mr Paul has contended that he would not call himself as a witness and that it would be improper for the defendant to subpoena him as such. He argued that the summary of evidence clearly revealed the evidence that is sought to be led on the part of the plaintiff and he is not one of the witnesses. He accepted the contention by Mr Uriri that the issue of who the shareholders and directors are is for determination by the trial court and contended that the shareholders nominate the directors. He submitted that at the pre-trial conference the defendant had belatedly raised for the first time the issue that plaintiff's representatives, namely Viera Senior and Viera Junior were no longer directors. He confirms that after the pre-trial conference there was an Annual General Meeting held to ratify the actions of Wintertons in instituting the action. Mr Paul is of the view that that meeting, contrary to the assertions of Mr Uriri is not vital to the issues before this court.

      At para 68, p 156, Lewis in his book Legal Ethics says:

 

 

“In Supreme Court actions the entry of an attorney in the into the witness-box is by no means uncommon, either because the evidence he has to give, though expected ab initio, was of a formal nature only (i e not a grave part of the main contention rendering withdrawal essential), or because events from the initiation of proceedings up to trial were not so patterned as to avoid the need for his evidence. In such circumstances it may become the duty of the attorney to give evidence; and if counsel finds it necessary to call him he certainly must not seek to avoid testifying; even to hint to the client that he would rather not give evidence would be reprehensible. The suggestion is made earlier in this paragraph that evidence of the attorney which is a grave part of the main contention might render it essential that he did not act. The reason for this and the picture presented will be plain to any practitioner experienced in the handling of Supreme Court litigation……………………………….................................................

………………………………………………………………………………………..

In those circumstances that attorney should certainly not act as attorney for the defendant in the action brought by the corporation. He is far too near the matter to exercise the necessary judgment in advising a client respecting the conduct of the suit let alone its possible settlement.”

 

In Bozimo & and Development Co P/L v First Merchant Bank of Zimbabwe & Ors[1], CHATIKOBO J in considering an objection to the appearance as counsel in the matter before him by a chairman of the applicant opined that due to the relationship of the legal practitioner of the applicant with the myriad affairs of the companies that he was chairman of and with whose legal brief the legal practitioner was seized, he would not permit him to appear fro the same as counsel but would allow him to appear as an agent of the applicants.

In our jurisdiction a legal practitioner is an officer of the court and as such the court has jurisdiction over the said legal practitioner and in the event that it is established that the legal practitioner has performed acts or actions that are inconsistent with the legal practitioner's duty to the court, then it is within the power of the court to sanction such legal practitioner. In the case before me there can be no talk of a conflict of interest on the part of Mr Paul. There is, however, clear evidence on his part of a breach of his duty to the court.

He has always acted as the legal practitioner for the plaintiff in relation to its dispute with the defendant's representative. At the pre-trial conference in June 2007 he was aware that the most burning issues for determination in the trial related to the shareholding and to the directors of the company. A legal practitioner's duty is to protect the interests of his client and to give legal advice. It is not the function of the legal practitioner to then step into the shoes of the client and perform, on behalf of his client, acts that are materially related to the dispute before the court in an endeavour to buttress the case of his client. This is especially reprehensible when one takes into account the fact that the question of the plaintiff's authority to institute the current proceedings had been raised with Mr Paul and he was aware that this alone could damage the success of the plaintiff's claim. Notwithstanding this fact and his legal knowledge, and, more importantly, his duty to the court, Mr Paul had the temerity to hold a meeting attended only by himself as director of the company and at which meeting he issued a resolution in terms of which his actions as a legal practitioner in instituting the proceedings were ratified by himself. In addition to this, a resolution passed by Mr Paul under the guise of director of the plaintiff sought to nullify the appointment of defendant's nominees as directors. Whether their supposed appointment was irregular or not was not an issue that he was empowered, as a legal practitioner, to deal with legally. This particular action, if true, would cast a very serious light on the conduct of Mr Paul as a legal practitioner, especially in light of the surrounding circumstances of the case, taking into account that that was one of the issues for determination at trial. Even if it had transpired that the appointment had been irregular for a legal practitioner to then don his client's mantle and rectify the irregularity by nullifying the appointments amounts to serous misconduct. As was said by WESSELS JA in Robinson v van Hulsteyn & Ors[2] :

 

“According to our law, a solicitor is an officer of the Court, the Court exercises jurisdiction over him and will see that in the conduct of his professional work he displays towards the Court and towards his clients a very high standard of conduct”        

 

 

The conduct of Mr Paul towards the court cannot in the instant case be described as being of a very high standard. He has aligned himself so closely with his client's case that this court can be forgiven for stating that he has displayed an interest in the case going beyond that of a legal practitioner. In HH 37/09 an application brought by the plaintiff against the defendant for an interdict, the founding affidavit was deposed to by Mr Paul in his capacity as a director of the plaintiff. I wish to associate myself with the views of CHEDA J in Chafadza v Edgars Stores Ltd & Anor[3] to the following effect:

 

 

“To my mind, it is highly undesirable to either attest to an affidavit or sign an urgent certificate for and on behalf of a client who is being represented by his firm as such lawyer clearly has an interest in the matter at hand.”

 

 

It seems to me that the contention of the defendant that the conduct of Mr Paul  after the pre-trial conference was such that it has contemplated serving him with a subpoena has merit. The court has wide powers in regulating the conduct of the legal practitioners over which it has jurisdiction. The power reposed in the judge is not just to control and direct the proceedings but also to ensure at the end of the day that justice is done to all parties to the dispute. Where therefore, in circumstances where the actions of a legal practitioner may be such th at he may be called as a witness as may happen in this case, it would be undesirable and indeed not in the interests of justice, if a legal practitioner who should be an important witness in the matter in hand is allowed to act for a party to the dispute. It is important that the legal practitioner should at all time retain his independence in relation to his client and the litigation which is being conducted. If he is to give important evidence in the circumstances where his credibility may be called into question, his independence as a professional adviser to his client in the matter may be affected. If he is to testify as a witness he acquires an interest in the matter which may make it difficult for him to discharge his professional duty to his client, and to this must be added the fact that his impartiality may be suspect due to his being a legal practitioner for one of the parties to the dispute. The authors Hoffman & Zeffert 4ed in their book The South African Law of Evidence state at p378:

 

“The attorney or counsel acting for a party is also not an incompetent witness, but it is similarly undesirable that he should give evidence on anything which is a matter of controversy since this might indicate a degree of partisanship incompatible with his duty to the court.”

 

In assuming the mantle of his clients and accepting the proxies by which he then held meetings and passed resolutions that had a direct bearing on matters in hand, Mr Paul clearly showed a partisanship with the case of the plaintiff in manner that is incompatible with his duty to the court. If he is called to give evidence this would be irregular indeed as a legal practitioner is instructed to advise his client, and he cannot be a legal adviser and a witness. He can only assume one role not both.

In the premises in view of the involvement by Mr Paul in matters of the plaintiff which have a direct bearing on this trial, it would in my view be irregular for him to continue acting for the plaintiff. It would also I believe not be in the interests of justice. I therefore accede to the application by the defendant and I direct that Mr Paul stop acting for the plaintiff in this trial.

       

 

The application is therefore granted as prayed. 

     

 

 

 

Wintertons, legal practitioners for the plaintiff.

Kantor & Immerman, legal practitioners for the defendant.


[1] 2000 (1) ZLR 1

[2] 1925 AD 12 at 21

[3] 2005 (1) ZLR 299 at 300G

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