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Police Brutality

16 October 2012, 15:29

1.    Introduction

The Constitutional Court noted South Africa as a democratic state founded on the values of human dignity, the right to life and advancements of freedom of security of persons.[1] The South African Constitution is the supreme law of the land and it affords the right to equal protection and benefit of the law to all persons; thus all persons should be protected from unlawful infringement of their inherent right to dignity.[2] Therefore emphasis is placed on the fact that no person is expected to endure any forms of brutality.

Recently, high profile incidents of police brutality have been surfacing largely due to extreme media coverage.[3] Incidents such as the Stellenbosch brutal drug raid,[4] the Andries Tatane and,[5] most recently the Marikana miners protest,[6] have received extensive media coverage just to mention a few.  However, there are many more incidents involving police brutality which have not made the front page news as they are either too low profile and/or are isolated. Police brutality occurring for example in rural areas is most likely to go unnoticed as people have lesser means and are unlikely to do anything about it. An important point is that people in poorer communities are not adequately educated about their rights and what to do if they experience police brutality.

Police brutality can take many different forms usually physical, but potentially in the form of verbal attacks, false arrest; intimidation; racial profiling; political repression; surveillance abuse; sexual abuse; and police corruption and psychological intimidation, by a police officer. Widespread police brutality exists in many countries, even those that prosecute it. It is one of several forms of police misconduct.[7]

Hereinafter police brutality will be referred to in relation to the use of excessive force by the police in carrying out an arrest.

This assignment aims to enumerate on the fundamental right to human dignity in relation to the right to life and the right not to be treated or punished in a cruel, inhumane or degrading way through means of police brutality conferred by the Constitution.[8] An additional aim of this assignment is to empower the general community especially, the poorer community on how to seek assistance in cases of police brutality. In summary, this assignment seeks to investigate the root and to suggest remedies on how to redress, improve and limit incidents of police brutality within the police force.

1.    What is police brutality?

Police brutality has been defined as a Constitutional civil rights violation that occurs when a police officer acts with excessive force by using an amount of force with regards to a civilian that is deemed more than necessary.[9] Excessive force is not subject to a precise definition, but it is generally beyond the force a reasonable and prudent law enforcement officer would use under the circumstances.[10] This basically entails that the use and exercise of force by a law enforcement officer in carrying out an arrest must be proportional to the threat of danger posed in the circumstances. Any further deviation from such proportionality is deemed to be excessive force and will be in violation of not only another’s right to human dignity but also their right to freedom of security of persons.[11]

2.    Police brutality in South Africa before the 1994 Constitution

Prior to 1994, South Africa was a state based on parliamentary sovereignty.[12] When the National Convention met in 1908 and 1909 to form the Union of South Africa, delegates were not concerned about a Bill of Rights.[13] However, one of the main features of the South African Constitutions of 1910, 1961 and 1983 was the absence of a Bill of Rights that protected the citizens against the abuse of power by the state inclusive to the abuse of power used by law enforcement officers.[14]

The apartheid parliamentary sovereignty state was characterised by laws that violated human rights and entrenched racial divisions.[15] Acts such as the Pass laws Act,[16] the Public Safety Act[17] and the Riotous Assemblies Act[18] were passed by the state. These Acts made use of the South African Police as a repression tool against anybody who was against the apartheid system.[19]

The old South African Police hereinafter referred to as SAP force was responsible for numerous human rights abuses during the apartheid era which were disguised behind enacted laws such as the Pass laws Act,[20] the Public Safety Act[21] and the Riotous Assemblies Act[22]. The South African Police were seen and known for instituting state terrorism and murder. Atrocities such as the Sharpeville massacre,[23] Soweto uprising,[24] were marked as the worst incidents of racial violence in South Africa at the hands of SAP.[25] One notable incident was Stephen Biko's death in detention which illustrates the brutality of the security police during apartheid and the state's hand in covering up torture and abuse of political detainees.[26] This led to the violence that escalated during the 1980’s which was not only against the individual, but against the community as a whole as well.[27]

Widespread use of force in arrests, police raids in the townships, detention without trial, interrogation and use of violence to extract information was common.[28] Torture of suspects was also prevalent under SAP.[29] It is evident that Police brutality was influenced immensely by political views and supported by unjust and inhumane legislation. Youth Day, a celebrated public holiday serves as a testimony of the Soweto uprising honouring the lives of those who died at the hands of a police force whose vicious injustices our Constitution not only seeks to eradicate but to redress as well.[30] 

3.    Police brutality since the introduction of the Constitution

Since the introduction of the new Constitution; the main goals have been to endeavour towards democracy, equality and protection of all people’s from all forms of abuse including police brutality.[31] However, although much has improved over the past decade in the South African Police Service (SAPS) since the dark days of apartheid, a glaring fault line in the transformation process has been the high levels of abuse of police power and misconduct.[32]

The Constitution was enacted in 1996 as the supreme law so as to mend the divisions of the country’s past and create a society based on fundamental human rights and social justice as illustrated in the preamble.[33] The main objective of the Constitution was to strive towards democracy, equality and protection from all forms abuse including police brutality so as to prevent a recurrence of the injustices of the Apartheid era.[34]

However, at the turn of a decade after independence evidence shows that police brutality not only still exists but is widespread within the borders of the Republic of South Africa.[35] Even after the composition and endorsement of the 1996 Constitution and its inclusion of an adequate and explanatory Bill of Rights, police brutality still occurs on a very large scale. Historical, social and economic reasons contribute to the continued existence of these atrocities.

Historically, the manner and conduct of South African Police under the Apartheid regime has had an impact on the police force of today.[36] The modern South African Police Service never underwent significant positive retraining programmes that changed the culture of police and how they deal with civilians.[37] Although, unaccepted legislation that once permitted police brutality has been done away with after the enactment of the Constitution,[38] some of the old habits of members of the police force still prevail. Citizens themselves, (particularly in poorer communities) who were accustomed to police brutality in the past, are not fully aware or able to draw the line of distinction today between police misconduct and what is acceptable.[39] The failure to cultivate a new culture in the police as opposed to that of the past is one of the major reasons why this phenomenon still exists in South Africa.[40]

With regards to social and economic reasons, Green and Ward explained social theories are pivotal in explaining the understanding of police violence and the use of lethal force in policing democracies.[41] In South Africa we have different classes of people in society with different classes comes different preferable treatments especially in terms of police violence in society.[42] Box came up with the “social elite driven theory”.[43] The Box theory illustrates an idea that preferential treatment is given to the “social elite” of society with regard to police conduct.[44] The theory informs of discrimination on the basis of class and social status.[45] Furthermore, it describes that police brutality is driven by the increased and publicized social elite’s fear of crime.[46] There appears to be a direct correlation between the more fearful the elite are of crime; the more likely the police will tolerate illegal use of force against suspects.[47] According to Mistral et al 2001, in South Africa, some police admitted that an increase in use of excessive force was fuelled by an increased fear of crime in the country.[48] The theory further reiterates that societies that are poverty stricken and economically marginalized groups are treated with indifference by the state in comparison to the social elite.[49] This would explain why more police brutality occurs in poorer communities, than in rural to urban areas.[50]

Internationally, police brutality has proven to be a worldwide trend over the years with huge sad examples such as the Rodney King Beatings in 1991 where police brutality (caused an uprising) subsequently led to the death of 53 people.[51] 

4.    Importance of rights in relation to police brutality in South Africa

South Africa is a nation that has gone through significant changes since the introduction of the 1996 Constitution. The introduction of the new Constitution has been recognized and has been rated as the ideal Constitution in the world.[52] A Constitution based on the protection and development of Human Rights as its pinnacle objective has seen South Africa take great strides in curing the division between the different races and classes caused by the Apartheid regime prior to 1994.[53]

However even though South Africa does not have a hierarchy in regards to rights in the Bill of Rights, the legislatures of the International Law Constitution and that of South Africa’s Constitutional preamble placed Human dignity as a pivotal point of departure by reference to words such as honor and respect.[54]

Furthermore, human dignity was inserted as one of the founding provisions for the achievement of human rights and freedoms in South Africa.[55] It is not only the legislature that has placed considerable emphasis on Human dignity; the judiciary of South Africa has also done so in numerous landmark decisions.[56]

In Dawood and Another v Minister of Home Affairs and Others the Constitutional court held that the recognition and protection of human dignity is a foundational constitutional value.[57]

In addition, the Constitutional Court in S v Makwanyane, stated that the right to life and dignity are the essential content of all rights under the Constitution, take them away, and all other rights cease.[58] The court further noted that everyone has inherent dignity and the right to have their dignity respected and protected.[59]

Human dignity is not only a justiciable and enforceable right that must be respected and protected.[60] It is also a value that informs the interpretation of possibly all other fundamental rights. It plays a central significance in the limitations enquiry.[61] The Courts observed that the right to dignity is at the core of the right not to be tortured or treated or punished in a cruel, inhumane or degrading way.[62]

S v Williams stated that respect for human dignity is a value which, if you acknowledge it, it includes an acceptance by society that even the ‘vilest criminal’ remains a human being possessed of common human dignity.[63] This right is at the heart of the right not to be tortured or to be treated or punished in a cruel, inhumane or degrading way, hence the reason why corporal punishment is expressly prohibited.[64]

As was pointed out in S v Makwanyane, without life it would not be possible to exercise rights or bearer of them. The significance of the case is that the court pointed out that the right to human dignity and the right to life are entwined.[65] 

In the Constitutional Court case of Mohamed, the rights discussed were the right to human dignity, the right to life and the right not to be treated or punished in a cruel, inhumane or degrading way as guaranteed in the Constitution.[66] The Court held the Constitution not only enjoins the South African government to promote and protect these rights but precludes it from imposing cruel, inhumane or degrading punishment which would as a result have a negative effect on the human dignity of a person as a human being.[67]

5.    Human dignity under International Law

The importance given to human dignity by the South African Constitution accords with the standard of the international community for example;

Germany

Germany, during the Nazi era gave no regards for human dignity and bodily integrity with human experimentation, concentration camps and arbitrary police brutality. Policing during the Hitler epoch involved instilling fear in the public, using brute force to apprehend “non-aryan” peoples and administering unorthodox justice upon perpetrators. The police were largely used as a political appendage by the Nazi regime to carry out their demands and policies, this underlines the Box Theory.[68] At the end of World War II the UN Charter was created to make sure the horrors of the Holocaust were not repeated and to “reaffirm faith in fundamental human rights such as human dignity of a person.” Since that period Germany now regards human dignity with high value and protects it within society and within the police force.[69]    

France

During the Revolutionary Era France under took to write and enact one of its earliest Constitutions in 1791 which satisfied mainly Monarchical interests rather than those of the public.[70] Once again we see that the Box Theory has existed for over centuries. Human dignity was recognized to a minimal extent that gave some freedoms to the people against arbitrary ill treatment from subject on the same level.[71]

Modern Day France, the Constitution is parallel with that of the Universal Declaration of Human Rights.[72] France generally upholds Human dignity and Bodily Integrity with regard to police conduct.

Uganda

After gaining its independence from Britain in 1962 the Prime Minister threw out the Constitution and took full control of the country under him.[73] He lost control in a coup led by Idi Amin who became the President of Uganda.[74] Idi Amin then went on to use the police to spread fear in the public through arbitrary police brutality, murders and rape. Idi Amin is recognized as one of Africa’s worst dictators to date.[75]

The Amin era shows once again a personal use of police motivated by political interests.[76] Human dignity and Bodily integrity were not recognized during that period and represent a dark time for Uganda.[77]

Uganda has made a remarkable turnaround and has established a Uganda Human Rights Commission which serves to monitor and advance human rights in Uganda.[78] It was established under the 1995 Constitution Article 51 under the Bill of Rights found in Chapter four of the Constitution of Uganda.[79]

In addition to this The African Commission of Human and Peoples Rights acknowledged that Human dignity is a fundamental right that must be respected by society.[80] It is evident that internationally and locally human dignity is recognised and maintains a high status amongst the citizens of the world. It is the duty of all states to ensure the protection of this fundamental right and safe guard the dignity of its people.[81]

6.    Police Procedure as set out by Legislation

The Constitution illustrates that the objects of the police service are to “prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to uphold and enforce the law.[82]

Criminal Procedure Act

The Criminal Procedure Act regulates the way in which a police officer is suppose too carry out an arrest.[83] Section 49 regulates the use of force in principle, such provisions authorise the use of force against persons and in what manner they should be arrested.[84] Notably provisions as such raised constitutional dilemmas with the relationship between the three main rights in the Bill of Rights.[85] The Constitution commands that the state and all its organs to respect, protect, promote and fulfil all the rights in the Bill of rights, rights such as human dignity, right to life and the right not to be treated or punished in a cruel inhumane or degrading way.[86] In Govender v Minister of Safety and Security the Supreme Court of Appeal did not declare section 49(1) unconstitutional but found it had to be interpreted restrictively ('read down’) to survive constitutional scrutiny.[87] The Constitutional Court on the other hand confirmed the unconstitutionality of section 49(2) in S v Walters (CC) and the provision was declared invalid albeit not with retrospective effect.[88]

The Criminal Procedure Act was amended in order to be in line with the Constitution.[89] According to David Bruce,[90] the biggest debate is not whether the police should have the power to use excessive force under what circumstances as there are no direct definitions of such circumstances.[91] The amendment to Section 49 refers to circumstances where a person believes that there is "a substantial risk that the suspect will cause imminent or future death or grievous bodily harm".[92]

Bruce was of the opinion that the "future danger" provision could have implications for persons, particularly members of police services, who may be faced with a need to perform their legal responsibilities under an ill-defined legal framework which requires them to make a judgment as to whether or not the fleeing person is likely to cause death or serious bodily harm in the future, without providing any guidance as to how such a future danger is to be evaluated.[93] In countries like Canada, where the future danger principle is part of the law, there is less use of force by the police (and lower violent crime rates). These countries are also better able to maintain administrative mechanisms which can impose accountability in relation to such a standard.[94]

The Constitution illustrates the objects of the police service are to “prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to uphold and enforce the law.[95] The Criminal Procedure Act regulates the way in which a police officer is suppose too carry out an arrest.[96]

In addition to providing for the use of lethal force in relation to an immediate threat, the amendment provides for such a person to use this force in cases of a substantial risk of a future threat to life or of grievous bodily harm.[97]

7.    Remedies

The following points are remedies to help deduce the effects of police brutality and solutions on how to inform the people on their rights;

-       Government should implement procedures that deal with police officers who abuse their use of force including torture.

-       Police departments should be obligated to keep and report records on the use of force and provide statistics on the use of force.

-       Training programmes should be implemented in all police departments to diminish the risk of unnecessary force, death and injury.

-       Parliament should implement legislation to set out guidelines on the circumstances police may use excessive force, as the “future provision” in section 49 CPA is to broad. 

-       Screenings for police officers, ensuring that they observe procedural rules.

-       Meetings in police departments should be held to inform police officers on their duties, responsibilities, ethics and integrity training. 

-       Police officers who administer brutality are held liable and have their pensions reduced substantially

-       A bill such as the Torture Bill is under consideration in Parliament so as to attempt to do away with such atrocities.

8.    Conclusion

This project seeks to enhance everyone’s human dignity particularly with regard to police brutality in order to progressively strive towards the spirit and purport in the Bill of Rights and Preamble of the Constitution. 

In conclusion this research focused on unveiling the root of police brutality and how to combat it in a community. The source of the problem and the available remedies provide us with a positive way forward as it is only a few bad law enforcement officers who carry out such brutal incidents.



[1]  Carmichele v Minister of Safety and Security and Another  2001 ( 4 ) SA 938 (CC) par [44].

[2]  s 9(3) Constitution of the Republic of South Africa, 1996.

[3] Maynard Media Centre on Structural Inequity “Improving media coverage of Police Brutality” (2011-10-06)   http://mije.org/mmcsi/criminal-justice/improving-media-coverage-police-brutality-cases (accessed 2012-09-11)

[4] IOL “Brutal, violent raid in Stellenbosch” (no date) http://www.iol.co.za/news/south-africa/brutal-violent-police-raid-in-stellenbosch-1.392443#.UHeu5xKJVAc (accessed 2012-09-11)

[5] News24 “Justice sought for Tatane’s death” (2012-04-26) http://www.news24.com/SouthAfrica/News/Justice-sought-for-Andries-Tatanes-death-20120426 (accessed 2012-09-11)

[6] Human Rights Watch “South Africa: NPA still wrong  in Lonmin matter(2012-09-04) http://www.hrw.org/news/2012/09/04/south-africa-npa-still-wrong-lonmin-matter (accessed 2012-09-13)

[7] New York Police Brutality Lawyer “New York Police Brutality Lawyer” (no date) http://www.newyorkpolicebrutalitylawyer.com/policebrutality.html (accessed 2012-09-13)

[8] Constitution of the Republic of South Africa, 1996.

[9] Snyman Criminal Law (2008) 130-138.

[10] Ibid.

[11] S v Walters 2002 2 SACR 105 (CC) at [47].

[12] Wikipedia “Parliament of South Africa” (no date) http://en.wikipedia.org/wiki/Parliament_of_South_Africa (accessed 2012-10-01)

[13] Turning Points in Human Rights, Book 1 (2009) 25.

[14] Turning Points in Human Rights, Book 1 (2009) 25.

[15] Liebenberg Human development and human rights South African country study (2000) 8.

[16] Blacks (Abolition of Passes and Co-ordination of DocumentsAct No 67 of 1952.

[17] 3 of 1953.

[18] 17 of 1956.

[19] Mistry et al The use of force by members of the South African Service: case studies from seven policing areas in Gauteng (2001) 8.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] SAHO “Sharpeville Massacre” (no date) http://www.sahistory.org.za/topic/sharpeville-massacre-21-march-1960 (accessed 2012-10-02)

[24] BBC news “S Africa marking Soweto Uprising” (2006-06-16) http://news.bbc.co.uk/2/hi/africa/5085450.stm  (accessed 2012-10-02)

[25] J. Hyslop, “Social Conflicts over African Education in South Africa from the 1940s to 1976”, PhD, thesis, University of the Witwatersrand, (1990), 424.

[26]Overcoming Apartheid “The Death of Stephen Biko” (no date)  http://overcomingapartheid.msu.edu/ (retrieved on 28/09/2012)

[27]South African History “Apartheid and the reaction to it” (no date) http://www.sahistory.org.za/liberation-struggle-south-africa/apartheid-and-limits-non-violent-resistance-1948-1960 (accessed 2012-10-02)

[28] Mistry et al The use of force by members of the South African Service: case studies from seven policing areas in Gauteng (2001) 8.

[29] Mistry et al The use of force by members of the South African Service: case studies from seven policing areas in Gauteng (2001) 8.

[30] South African History  “Response to the June 16 Soweto Youth Uprising by organisations in exile”(no date) http://www.sahistory.org.za/topic/response-june-16-soweto-youth-uprising-organisations-exile (accessed 2012-10-03)

[31] Constitution of the Republic of South Africa, 1996.

[32]McClathy “Fifteen years after apartheid, South Africa is at crossroads” (2009-04-19) http://www.mcclatchydc.com/2009/04/19/66232/fifteen-years-after-apartheid.html (accessed 2012-10-03)

[33] Preamble Constitution of the Republic of South Africa, 1996.

[34] Preamble Constitution of the Republic of South Africa, 1996.

[35] Health-e “Police brutality still vey rife-sex workers” (2012-08-27) http://www.health-e.org.za/news/article.php?uid=20033739 (accessed 2012-10-04)

[36] Centre for the study of violence and reconciliation “Creating a new South African Police Service: Priorities in the post-election period”(no date) http://www.csvr.org.za/wits/papers/papnsaps.htm (accessed 2012-10-04)

[37]  Bruce et al Police brutality in South Africa (2002) 27.

[38] Constitution of the Republic of South Africa, 1996.

[39] Bruce “Why we can’t give police more power” (no date) http://www.csvr.org.za/wits/articles/artforce.htm (accessed 2012-10-03)

[40] Bruce et al Police brutality in South Africa (2002) 27 30.

[41] UCT blog “Shoot to kill: Constitutionality of using lethal force as stated by Section 49 of the Criminal Procedure Act 51 of 1977” (no date) http://blogs.uct.ac.za/blog/ketumetse-mabelebele/general (accessed 2012-10-04)

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] BBC news US & Canada “Rodney King death ruled accidental drowning” (2012-08-23) http://www.bbc.co.uk/news/world-us-canada-19362561 (2012-10-05)

[52] Media Club South Africa “South Africa’s Constitution”(no date) http://www.mediaclubsouthafrica.com/index.php?option=com_content&view=article&catid=34:developmentbg&id=99:constitution (accessed 2012-10-05)

[53] Govindjee et al Introduction yo Human Rights law 2009 36.

[54] S v Makwanyane and Another 1995 (6) BCLR 665 (CC) par 213.

[55] s 1 Constitution of the Republic of South Africa, 1996.

[56] European Journal of International Law “Human Dignity and Judicial Interpretation of Human Rights” (no date) http://ejil.oxfordjournals.org/content/19/4/655.full (2012-10-5)

[57] Dawood and Another v Minister of Home Affairs and others; Shalabi and Another v Minister of Home Affairs and Others ; Thomas and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) par 34.

[58] Ibid.

[59] Ibid.

[60]  European Journal of International Law “Human Dignity and Judicial Interpretation of Human Rights” (no date) http://ejil.oxfordjournals.org/content/19/4/655.full (2012-10-5)

[61] S v Makwanyane and Another 1995 (6) BCLR 665 (CC)

[62] Dias Jurisprudence 81.

[63] S v Williams and Others (CCT20/94) 1995 (3) SA 632.

[64] Ibid.

[65] S v Makwanyane and Another 1995 (6) BCLR 665 (CC).

[66] s 12 Constitution of the Republic of South Africa, 1996.

[67] s 205 Constitution of the Republic of South Africa, 1996.

[68] National Online “Outline of Germany’s history” (no date) http://www.nationsonline.org/oneworld/History/Germany-history.htm (2012-10-06)

[69] Audiovisual Library of International Law “International Convenant on Civil and Political Rights” (1996-12-16) http://untreaty.un.org/cod/avl/ha/iccpr/iccpr.html (accessed 2012-10-05)

[70] Audiovisual Library of International Law “International Convenant on Civil and Political Rights” (1996-12-16) http://untreaty.un.org/cod/avl/ha/iccpr/iccpr.html (accessed 2012-10-05)

[71] History Today “The French Revolution: Ideas and Ideologies” (no date) http://www.historytoday.com/maurice-cranston/french-revolution-ideas-and-ideologies (accessed 2012-10-06)

[72] Peace Charter “A brief history of Human Rights”( 2012-07-10) http://peacecharter.org/?p=219 (accessed 2012-10-06)

[73] History world “History of Uganda”(no date) http://www.historyworld.net/wrldhis/plaintexthistories.asp?historyid=ad22 (2012-10-06)

[74] Ibid.

[75] Ibid.

[76] Ibid.

[77] Ibid.

[78] Ibid.

[79] Ibid.

[80] Govindjee et al Introduction to Human Rights law 2009 67 68.

[81] Ibid.

[82] s 205(3) Constitution of the Republic of South Africa, 1996.

[83] 51 of 1977.

[84] Ibid.

[85] Botha “Forceful arrest:an overview of section 49 the Criminal Procedure Act 51 of 1977” 2012 [per].

[86] s 205 Constitution of the Republic of South Africa, 1996.

[87] Govender v Minister of Safety and Security 2001 2 SACR 197  (SCA).

[88] S v Walters 2002 2 SACR 105 (CC) at [47].

[89] Criminal Procedure Amendment Act 65 of 2008.

[90] Bruce “Why we can’t give police more power” (no date) http://www.csvr.org.za/wits/articles/artforce.htm (accessed 2012-10-03)

[91] Ibid.

[92] Ibid.

[93] Bruce 2005 South African Review of Sociology 141-159.

[94] Bruce 2005 South African Review of Sociology 141-159.

[95] s 205(3) Constitution of the Republic of South Africa, 1996.

[96] 51 of 1977.

[97] Bruce South African Review of Sociology (2005) 141-159.

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