Facts and Matrimonial Background: A 30-Year Relationship
The parties in this matter were married out of community of property without the accrual system on 27 March 1999, following a six-year period of cohabitation that commenced in 1993. Their relationship, which spanned over three decades until their separation in June 2023, began whilst the Plaintiff was still married to his first wife and had already commenced divorce proceedings against her.
The Defendant commenced working for the Plaintiff in 1987 at the age of 18 as a receptionist after completing a standard 8 qualification. She was employed in his attorney’s practice where he conducted legal work and conveyancing. During 1990, whilst the Plaintiff was still married, they went on their first date. By 1993, the Defendant had moved into the Plaintiff’s property in Bryanston, Johannesburg, where they lived together permanently until she left the matrimonial home thirty years later.
The matrimonial relationship was characterised by the Defendant’s near-constant presence with the Plaintiff, both at work and at home. When the Plaintiff’s son, approximately five years old, came to live with them, the Defendant adjusted her working hours to mornings only to care for the child in the afternoons. She assumed responsibility for dropping the child at school and sports activities, cooking, washing, cleaning, and ironing, despite the presence of a domestic worker and gardener. The Defendant also actively supported the Plaintiff’s recreational pursuits, particularly his skydiving hobby, accompanying him to drop zones and learning to pack his parachuting equipment on each occasion.
Financially, the Defendant received modest remuneration throughout the relationship. Initially, she was paid in cash to cover electricity and water expenses. When the Plaintiff took in a partner, her salary increased to R15 000 per month, from which she was required to pay utility bills for both their Johannesburg home and their holiday property at Leisure Bay in KwaZulu-Natal. Any shortfall was covered by the Plaintiff. The arrangement was that the Plaintiff would purchase anything she needed, but he did not want her to have cash.
The Plaintiff’s financial position evolved dramatically during the marriage. After being sequestrated in 1990 following failed business ventures in a granite mine and transport company, he rebuilt his legal practice, which flourished considerably. He invested successfully in Boss Scaffolding, from which a friend purchased a 25% stake for R3 000 000. During the marriage, the Plaintiff acquired substantial assets including properties in Devonshire Road Johannesburg, Leisure Bay, and Simons Town, the latter of which was sold for R2 000 000. He amassed a collection of paintings by renowned South African artists such as Dorkin, Klaarhout, Boonzaer, and Tinus de Jong, which he initially valued at approximately R2 000 000, though he later revised this estimate to R200 000. The Plaintiff also accumulated 38 Kruger Rands and established a family trust through which various properties were held, including one owned by a company called Hackprop where he resided post-separation.
The standard of living enjoyed by the parties was undeniably luxurious. The Plaintiff admitted they frequented the best restaurants, often stopping for dinner on the way home at 16h00. He owned a Rolls Royce motor vehicle, was a director of multiple companies including Depont Capital with Hennie Eloff, and the parties took overseas holidays to destinations such as the Maldives and Mauritius. His income at various stages included approximately R30 000 from the practice and R40 000 from Boss Scaffolding.
The relationship between the parties and the property at 949 Portobello Road, Leisure Bay, where the Defendant’s parents reside, requires particular mention. This property was purchased primarily with funds provided by the Defendant’s parents in the sum of approximately R800 000, with the Plaintiff contributing R207 000 as a gift for the Defendant’s care of her parents. At the Plaintiff’s insistence, the property was registered solely in the Defendant’s name. Similarly, when the parties’ jointly owned property at Barracuda Drive, Leisure Bay was ordered to be sold, the Plaintiff was the only bidder at auction and purchased it for R500 000, with the liquidator being Hennie Eloff, who had worked with the Plaintiff for approximately thirty years.
Upon the Defendant’s departure from the matrimonial home in June 2023, she removed furniture from the Barracuda Drive property. The Plaintiff’s response was to lay criminal charges of theft against her, which the prosecutor refused to prosecute, followed by an application in the High Court for the return of every item she had taken, including furniture, cutlery, and hosepipes. The court granted this order, and all items were returned. The Plaintiff also cancelled the hospital plan which had been in the Defendant’s name, resulting in her receiving a surrender value of R68 000.
At the time of the hearing, the Defendant, aged 58, was unemployed and residing in a rented property in Leisure Bay, surviving on maintenance paid in terms of a Rule 43 order of R22 100 per month. She had been unable to secure employment despite searching at legal firms, shops, and various other establishments. Her only asset of significance was jewellery valued at approximately R45 800. The Plaintiff, aged 70, was retired and in receipt of the proceeds from the sale of the Devonshire property for R8 000 000, from which he received a net amount of R5 872 736.95, along with his 38 gold coins and benefits from the family trust of which he, along with his children, was a beneficiary.
The Legal Framework: Section 7(3) Redistribution Claims Post-EB v ER
The legal foundation for the Defendant’s claim rested upon section 7(3) of the Divorce Act 70 of 1979, which empowers a court to order one party to a marriage to transfer assets to the other party upon divorce. Critically, this remedy is available to parties married out of community of property without the accrual system after 1984, as confirmed by the Constitutional Court in EB v ER N.O. and Others 2024 (2) SA 1 (CC).
The substantive requirements for a redistribution order are contained in the subsections that follow. Section 7(4) establishes the threshold requirement that the court must be satisfied it is equitable and just to grant such an order by reason of the fact that the party in whose favour the order is granted contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage. Such contributions may take the form of rendering services, saving expenses which would otherwise have been incurred, or any other manner of contribution.
Section 7(5) directs the court to consider additional factors when determining the quantum of assets to be transferred. These include the existing means and obligations of the parties, any donations made by one party to the other during the marriage or owing in terms of the antenuptial contract, any order affecting the matrimonial position of the parties, and any other factor which should in the opinion of the court be taken into account.
The court in GKR v Minister of Home Affairs and Others 2022 (5) SA 478 (GP) confirmed, along with the EB v ER case, that no stricter grounds were imposed to prove a redistribution claim beyond those set out in the legislation. The test remains whether the claimant spouse has made a direct or indirect contribution towards the maintenance or increase of the other spouse’s estate.
In determining the nature and extent of contributions sufficient to ground a redistribution claim, the court found guidance in Beaumont v Beaumont 1987 (1) SA 976 (AD). The Beaumont case established that where a husband provides support for his wife and family from his income, and in return the wife performs her traditional role as wife and mother whilst managing the household and looking after the children, the performance of these duties by necessity contributes indirectly to the maintenance or increase of the husband’s estate. Significantly, the Beaumont judgment held at 997F that it is not necessary for the claimant spouse to have made a contribution in excess of her ordinary duties in a traditional marriage, and that ordinary household and children duties fall within the ambit of section 7(4).
The question of maintenance pending and after divorce is governed by section 7(2) of the Divorce Act. This provision requires the court to have regard to the existing or prospective means of each party, their respective earning capacities, financial needs and obligations, the age of each party, the duration of the marriage, the standard of living prior to the divorce, the conduct insofar as it may be relevant to the breakdown of the marriage, any order in terms of subsection (3), and any other factor which in the opinion of the court should be taken into account. The court must then make an order which it finds just in respect of the payment of maintenance by one party to the other for any period until the death or remarriage of the party in whose favour the order is given.
A further dimension to the legal analysis arose from the parties’ cohabitation for six years prior to their marriage. The court considered the principles established in Ponelat v Schrephfer 2012 (1) SA 206 (SCA) regarding universal partnerships. The Ponelat case confirmed at paragraph 19 that a universal partnership, also known as a domestic partnership, can come into existence between spouses and cohabitees where they agree to pool their resources. The judgment referred to Pewzuto v Dreyer 1992 (3) SA 379 (A), which set out the three essentials of a partnership: that each party must bring something into the partnership whether money, labour or skills; that the business should be carried on for the joint benefit of the parties; and that the object should be to make a profit.
The Ponelat judgment further held at paragraph 22 that a universal partnership can exist in a marriage, as recognised in Muhimann v Muhimann 1981 (4) SA 632 (W) and Fink v Fink and Another 1945 WLD 336. Crucially, the court noted that it does not follow that a universal partnership cannot exist between parties who are engaged to be married, and that such a partnership exists where the necessary requirements are met regardless of whether the parties are married, engaged or cohabiting, as confirmed in V (also known as L) v De Wet N.O. 1953 (1) SA 612 (O).
Contributions to the Estate: Direct, Indirect and the Universal Partnership Principle
The court accepted that the Defendant had made substantial indirect contributions to the maintenance and increase of the Plaintiff’s estate through her performance of household duties and personal care for the Plaintiff over the entire period of their relationship. Applying the Beaumont principles, Bezuidenhout J found it undisputed that although servants were employed, the Defendant cared for the home, cared for the Plaintiff, accompanied him everywhere, went on holidays together, and was with him constantly. The Plaintiff himself had admitted this reality. The court emphasized that they had enjoyed a luxurious lifestyle and that by caring for the home, caring for the Plaintiff, and assisting him in his hobbies, the Defendant contributed to the increase of his estate.
The judgment expressly rejected any suggestion that the Defendant needed to have made contributions exceeding ordinary spousal duties. Rather, the Beaumont judgment made clear that ordinary household and children duties, by their very nature, contribute indirectly to the maintenance or increase of the other spouse’s estate. In this matter, the Defendant’s contributions extended beyond mere household management. She spent the prime period of her life being with the Plaintiff constantly, poured him drinks in the evening, folded his parachutes for skydiving expeditions, accompanied him on motorcycle rides during his Harley Davidson phase, and during difficult financial times went so far as to sell bottles to obtain cigarettes for him.
Beyond indirect contributions through services rendered, the court accepted that the Defendant had made direct financial contributions to the common household. The evidence established that the Defendant made various payments to the Johannesburg Municipality in respect of the Devonshire property and to the uGu Municipality in respect of the Leisure Bay home. Whilst the Plaintiff’s counsel argued that the Plaintiff had made payments referable to the Devonshire property, the court found that the bank statements did not demonstrate this, and accepted the Defendant’s evidence that those payments by the Plaintiff related to other properties he owned. The court was therefore satisfied that the Defendant contributed not only by providing normal family duties but also financially to the common household.
The salary arrangement itself constituted evidence of financial contribution. The meagre amounts the Defendant earned, particularly the initial cash payments merely to cover electricity and water, and later the R15 000 per month from which she was required to discharge utility bills for both properties, demonstrated a pattern where her earnings were channeled directly into household expenses. When shortfalls arose, the Plaintiff would cover them, but the structure itself meant the Defendant was subsidizing the household’s running costs from her own labour. The Plaintiff’s admission that the Defendant did pay the City of Johannesburg rates and taxes, even whilst arguing he paid more, confirmed this pattern of financial contribution.
The question of the pre-marital cohabitation period assumed particular significance in the court’s analysis. Bezuidenhout J considered whether the six-year period during which the parties lived together as husband and wife before their formal marriage in 1999 should be factored into the assessment. The court found that during this cohabitation period, the parties satisfied the requirements for a universal partnership as articulated in the Ponelat and the Pewzuto cases. Each party brought something into the arrangement, whether money, labour or skills; their shared life was conducted for their joint benefit; and they were working toward building their lives together. The Defendant was with the Plaintiff constantly, they shared expenses, and they lived together as a family unit, including caring for his minor child.
Applying the Ponelat principle that a universal partnership can exist regardless of whether parties are married, engaged or cohabiting, provided the necessary requirements are met, the court held that the cohabitation period was a relevant factor to be taken into account when considering whether and to what extent there should be a redistribution of estates. The judgment noted the parties lived together as husband and wife, were together constantly, and shared expenses throughout this six-year period. This finding extended the effective duration of their partnership from twenty-three years of formal marriage to approximately thirty years of shared life, a factor that weighed heavily in the court’s ultimate determination.
The Plaintiff’s counsel had argued strenuously that the court was bound by the Full Court decision in AV v CV 2011 (6) SA 189 (KZP). Bezuidenhout J rejected this submission, finding difficulty in understanding to what extent the court was bound by that decision. The AV v CV case concerned a respondent who was still employed and computer literate, whose estate was double that of the appellant, and where the appeal succeeded because the trial court had misdirected itself in finding the respondent could not be rehabilitated to be self-supporting. The present case required the court to apply legal principles set out in the Divorce Act to a distinct factual situation, namely whether there existed a need for maintenance and whether there should be redistribution of the estate. The AV v CV judgment did not bind the court to reach any particular conclusion on materially different facts.
On the question of asset disclosure, the court was critical of the Plaintiff’s position. Whilst the Plaintiff asserted he owned only the Barracuda Drive property purchased for R500 000 at auction, he admitted the existence of a family trust controlling various properties, including Hackprop which owned the property where he resided. The paintings, initially valued by the Plaintiff at R2 000 000 but later revised to R200 000, were held in the trust. The court observed there had not been full disclosure from the Plaintiff regarding his assets, as the extent and value of his beneficial interest in the trust remained unclear. This lack of transparency regarding the trust’s holdings stood in stark contrast to the Defendant’s full disclosure of her limited assets.
The Court’s Order: A 40% Redistribution and the Clean Break Principle
Having found that the Defendant had established entitlement to both maintenance and a redistribution order, Bezuidenhout J turned to the question of quantum and the appropriate structure of relief. The court expressly considered whether permanent maintenance should be awarded or whether the matter was suitable for application of the clean break principle through a combination of capital redistribution and time-limited rehabilitative maintenance.
The ages of the parties featured prominently in this analysis. The Plaintiff was seventy years old and the Defendant fifty-eight years of age at the time of judgment. The court considered that ordering permanent maintenance payable by a seventy-year-old retired person to a fifty-eight-year-old recipient would not be advisable in the circumstances. Instead, the court determined it would be more equitable to apply the clean break principle and consider redistribution coupled with rehabilitative maintenance. This approach would provide the Defendant with capital to establish herself and acquire necessities, whilst acknowledging she would not be able to maintain the standard of living to which she had become accustomed during the marriage.
The court accepted without doubt, based on the figures provided, that the Plaintiff’s estate had increased considerably more than the Defendant’s estate. This disparity was stark. The Defendant, at fifty-eight years of age, had spent the prime of her life with the Plaintiff. She possessed whatever skills she may have obtained through her work experience but had no formal qualifications beyond standard eight, making it difficult for her to obtain reasonable employment at her age. The court recognized these realities weighed in favour of meaningful capital redistribution rather than extended maintenance dependency.
In determining the appropriate percentage for redistribution, the court applied all relevant factors mandated by sections 7(4), 7(5) and 7(6) of the Divorce Act. The judgment specifically noted that the period during which the parties were married and lived together exceeded thirty years when the pre-marital cohabitation was included. Throughout this extended period, the Defendant assisted the Plaintiff in his daily life, maintained constant presence with him, provided domestic services including pouring drinks in the evening, and accompanied him on family holidays. The parties agreed these facts were established. Most significantly, the Plaintiff’s estate had increased substantially due to the Defendant’s assistance, both through indirect contributions via household services and direct financial contributions to municipal accounts.
The court took into account the contributions the Plaintiff himself had made during the marriage, including the gifts totaling R407 000 toward properties where the Defendant’s parents resided. Balancing all these considerations, Bezuidenhout J determined that a redistribution of forty percent of the net value of the Plaintiff’s estate appeared appropriate. This percentage reflected the substantial contributions made by the Defendant over three decades whilst acknowledging the Plaintiff’s own financial inputs and his need to provide for his retirement at age seventy.
For rehabilitative maintenance, the court ordered the Plaintiff to pay R20 000 per month for a twelve-month period commencing on 31 December 2025. This time-limited maintenance was structured to bridge the gap whilst the Defendant established herself following receipt of the capital redistribution. The quantum was lower than the R22 100 being paid under the Rule 43 order, presumably reflecting that the capital payment would provide additional financial resources.
The judgment specifically ordered that the Defendant retain the property at Portobello Road, Leisure Bay. This determination resolved the dispute regarding whether this property should be considered part of the Defendant’s estate for purposes of calculating redistribution. The court had found it was common cause that the majority of purchase funds, approximately R800 000, came from the Defendant’s parents, with only R207 000 contributed by the Plaintiff as a gift. The Plaintiff provided no proof the parental contribution was not repayable. The fact no bond was registered for that amount was held to be irrelevant, as the debt to her parents remained. By ordering the Defendant to retain this property, the court effectively removed it from the redistribution calculation whilst ensuring her parents’ home remained secure.
The Plaintiff had sought costs against the Defendant on an attorney and client scale, arguing this punitive costs order was justified due to certain accusations she had made during the proceedings. The court rejected this application entirely. Bezuidenhout J noted the parties had agreed the reasons for breakdown of the marriage would not be an issue at trial. Furthermore, the Plaintiff had admitted he did not want children and admitted there was an abortion, although denying involvement in it. Considering these factors, the court found the claim for attorney and client costs to be unsubstantiated and totally unnecessary.
Since the Defendant succeeded with her counterclaim, the court applied the ordinary principle that costs follow the result. The Defendant was accordingly awarded her costs against the Plaintiff. However, because it was agreed the marriage had broken down irretrievably, no costs order was made in relation to the divorce itself, only the counterclaim for redistribution and maintenance.
The court’s conduct observations regarding the Plaintiff’s post-separation behaviour informed the overall equitable assessment. Bezuidenhout J remarked that the Plaintiff’s conduct in laying criminal charges when the Defendant removed furniture from their jointly owned property, followed by a High Court application to recover every single item including cutlery and hosepipes, was not what one would expect of parties who had lived together for over thirty years. The court noted pointedly that the Plaintiff stated he had paid maintenance to his first wife because he had been married to her for thirteen years, yet this marriage was more than double that duration. This observation underscored the inequity of the Plaintiff’s position that the Defendant should walk away from a thirty-year partnership with nothing.
The three-month timeframe for payment of the forty percent redistribution provided the Plaintiff with a reasonable period to liquidate assets or arrange financing to satisfy the capital order. The court did not specify how the net value of the Plaintiff’s estate should be calculated, leaving this to be determined either by agreement between the parties or, failing agreement, by further application to court. This omission may prove problematic given the court’s own finding that the Plaintiff had not made full disclosure regarding the family trust and its assets, and that the extent of his beneficial interest remained unclear.
The judgment concluded by noting it had been reserved on 16 September 2025 and was handed down on 5 December 2025, a period of approximately eleven weeks. The matter had proceeded over many days with lengthy cross-examination on payments made by each party, contained in various lever arch files of bank statements and financial records. Despite this extensive evidential record, Bezuidenhout J expressed the view during judgment that the case would have benefited from appointment of a receiver to establish the real position and determine the total assets in both parties’ estates. However, as neither party requested such appointment and no relief seeking a receiver appeared in the pleadings, the court could not grant this relief of its own motion.
Questions and Answers
What is the statutory basis for a redistribution claim where parties are married out of community of property without accrual?
The statutory basis is found in section 7(3) of the Divorce Act 70 of 1979. Following the Constitutional Court decision in the EB v ER case, it is established that redistribution orders can be granted to parties married out of community of property without accrual after 1984, provided the requirements set out in the subsequent subsections are met.
What must a claimant spouse prove to succeed with a redistribution claim under section 7(4)?
The claimant spouse must prove that they contributed directly or indirectly to the maintenance or increase of the other party’s estate during the subsistence of the marriage. Such contributions may be made by rendering services, saving expenses which would otherwise have been incurred, or in any other manner. The court must be satisfied that granting the order is equitable and just by reason of these contributions.
Does a spouse need to prove contributions exceeding ordinary spousal duties to qualify for redistribution?
No. The Beaumont judgment established conclusively that it is not necessary for the claimant spouse to have made contributions in excess of ordinary duties in a traditional marriage. Ordinary household and children duties, by their very nature, contribute indirectly to the maintenance or increase of the other spouse’s estate and fall squarely within section 7(4).
What factors must a court consider when determining the quantum of a redistribution order under section 7(5)?
The court must consider the existing means and obligations of the parties, any donations made by one party to the other during the marriage or owing in terms of the antenuptial contract, any order affecting the matrimonial position of the parties, and any other factor which should in the opinion of the court be taken into account. These factors operate in addition to the direct or indirect contributions contemplated in section 7(4).
Can a period of cohabitation before marriage be considered when assessing redistribution claims?
Yes. The court held that where parties lived together as husband and wife before their formal marriage and satisfied the requirements for a universal partnership as set out in the Ponelat and the Pewzuto cases, this cohabitation period is a relevant factor to be taken into account when considering whether and to what extent there should be redistribution of estates.
What are the three essential requirements for establishing a universal partnership between cohabitees?
The Pewzuto case confirmed the three essentials: firstly, each party must bring something into the partnership whether money, labour or skills; secondly, the business or relationship should be carried on for the joint benefit of the parties; and thirdly, the object should be to make a profit or build their lives together. These essentials apply equally whether parties are married, engaged or cohabiting.
Must a universal partnership be established by express agreement?
No. The Ponelat judgment confirmed that a contract of partnership may not necessarily be express but could be tacit or implied from the facts, provided those facts admit of no other conclusion than that the parties intended to create a partnership. Courts have recognized that universal partnerships can come into existence between spouses and cohabitees where they agree to pool their resources.
What factors must a court consider when determining maintenance under section 7(2) of the Divorce Act?
The court must have regard to the existing or prospective means of each party, their respective earning capacities, financial needs and obligations, the age of each party, the duration of the marriage, the standard of living prior to divorce, conduct insofar as relevant to the breakdown of marriage, any redistribution order granted, and any other factor which should in the court’s opinion be taken into account.
What is the clean break principle and when is it appropriate to apply it?
The clean break principle involves terminating ongoing financial dependency between divorced spouses through a combination of capital redistribution and time-limited rehabilitative maintenance rather than permanent maintenance. The court found it appropriate in this matter given the ages of the parties, the availability of capital for redistribution, and the objective of enabling the dependent spouse to establish herself independently rather than remain indefinitely dependent on maintenance payments.
Does a property registered in a spouse’s name automatically form part of that spouse’s estate for redistribution purposes?
Not necessarily. The court found that although the Portobello Road property was registered in the Defendant’s name, the substance of the transaction was that the majority of purchase funds came from her parents as a loan, with only a gift component from the Plaintiff. The fact no bond was registered for the parental contribution was held irrelevant, as the debt remained owing. Registration alone does not determine beneficial ownership or whether an asset should be included in estate calculations.
What obligation does a party have to disclose assets held in trust structures when redistribution is claimed?
The court criticized the Plaintiff for failing to provide full disclosure regarding the family trust and its assets. Whilst the Plaintiff admitted being a beneficiary along with his children, the extent and value of his beneficial interest remained unclear. The judgment suggests that proper disclosure requires sufficient information to enable the court to determine the true extent of a party’s estate, including interests held through trust structures, even where those interests may be contingent or discretionary.
Can a Full Court decision bind a trial court to reach particular conclusions on different facts?
The court rejected the submission that the AV v CV Full Court decision bound it to any particular outcome. Bezuidenhout J held that whilst respecting the Full Court’s legal principles, the AV v CV judgment was decided on its own particular facts involving an employed, computer literate respondent whose estate exceeded the appellant’s. The present case required application of legal principles from the Divorce Act to materially different factual circumstances.
What is rehabilitative maintenance and how does it differ from permanent maintenance?
Rehabilitative maintenance is time-limited financial support designed to bridge a transitional period whilst a dependent spouse establishes financial independence, typically following receipt of capital redistribution. It differs from permanent maintenance, which continues until death or remarriage of the recipient. The court ordered twelve months of rehabilitative maintenance at R20 000 monthly, providing transitional support whilst the Defendant adjusted to her changed circumstances following the capital payment.
On what basis can a court award costs on an attorney and client scale in divorce proceedings?
The court must find that the conduct of the unsuccessful party was reprehensible, vexatious or otherwise justifying punitive costs. In this matter, the court rejected the Plaintiff’s application for such costs despite allegations made by the Defendant, finding the claim unsubstantiated and totally unnecessary where parties had agreed the reasons for marital breakdown were not in issue and where the Defendant had succeeded in her counterclaim.
What is the significance of post-separation conduct in assessing equitable redistribution?
Whilst not a formal factor in sections 7(4) or 7(5), the court may consider post-separation conduct as part of the overall equitable assessment. Bezuidenhout J remarked that the Plaintiff’s conduct in laying criminal charges over removal of furniture from jointly owned property, followed by High Court proceedings to recover every item including cutlery and hosepipes, was not what one would expect after thirty years together. This observation informed the court’s view that the Plaintiff’s position that the Defendant should receive nothing was inequitable.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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