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Citation
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Judgment date
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| December 2013 |
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Delayed payment in lieu of notice does not extend employment; remedies under s85A require a proved complaint.
Employment law — termination by payment in lieu of notice — effective date determined by contractual terms — delayed payment attracts interest but does not extend employment — Industrial Relations Court remedies under s85A require complaint to be proved.
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30 December 2013 |
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Court set aside lump-sum house and monthly maintenance orders for exceeding the consent order and not assessing means.
Affiliation and Maintenance Act (Section 10) – Forms of maintenance (periodic, secured, lump sum) – Consent order construction – Court exceeded consent by ordering both lump sum (house purchase) and periodic payments – Failure to assess means (Section 11) – Referral for assessment.
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26 December 2013 |
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A surviving spouse's substantial contribution to a matrimonial home's purchase creates a beneficial interest entitling the respondent to 50%.
Constructive trust; matrimonial home; spouse's substantial contribution; proprietary interest; intestate succession inapplicable; valuation and sale; equitable apportionment.
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25 December 2013 |
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Allegations that the Supreme Court was biased constituted contempt admitted by the contemnor, who was convicted but granted an absolute discharge.
Contempt of court – scandalising the court by public statements – admission and apology as purge – sentencing – absolute discharge; Procedure – Order 52(4)(1) Supreme Court Rules applicable to contempt motions in Supreme Court (leave not required); Electoral law – Section 104(6) reports by High Court and effect of Supreme Court judgments; Judicial impartiality – impropriety of parties sending legal opinions to members of the Court.
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22 December 2013 |
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Donations by a candidate during campaign rallies amounted to illegal practice under s.93(2)(c), nullifying the election.
Electoral law – Illegal/corrupt practice – Candidate's donations during campaign – Section 93(2)(c) Electoral Act – Timing and source of donations as undue influence; Election nullification. Electoral law – Collection of voters' details – insufficient proof. Electoral law – Transporting employees to vote – no undue influence absent coercion. Electoral (Code of Conduct) Reg 10(2)(d) – candidate's presence at polling station an offence but not necessarily grounds for nullification.
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18 December 2013 |
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Publication of factual allegations by a radio station was defamatory; unpleaded justification failed and damages were reduced.
Defamation — natural and ordinary meaning — justification must be specifically pleaded — fair comment applies only to opinion — causation between publication and dismissal/retirement — appellate reduction of excessive damages.
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18 December 2013 |
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Donations by a candidate during campaign rallies constituted an illegal practice under Section 93(2)(c), nullifying the election.
Electoral law – Illegal/corrupt practice – Donations by a candidate during campaign rallies – Section 93(2)(c) Electoral Act – Timing of donations distinguishes philanthropic/government projects from inducement; transport of employees and presence at polling station not necessarily voiding elections; insufficiency of evidence for individual cash distributions, card confiscation, and defamation/race allegation.
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17 December 2013 |
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A High Court judgment was annulled because the case transfer between judges failed to meet statutory recusal and transfer requirements.
Civil procedure — Recusal and transfer of High Court judges — Sections 6–7 Judicial (Code of Conduct) Act — Section 23(1) High Court Act — Transfer must be recorded and effected by order; irregular transfer vitiates jurisdiction; judgment null and void; retrial ordered.
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17 December 2013 |
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Open Court conversion of originating summons removes requirement for leave to appeal; executed possession precludes stay, but sale restrained pending appeal.
Civil procedure — Conversion of originating summons to writ under Order 28 Rule 9 — Open Court versus chambers — Requirement of leave to appeal under s.24(1)(e) Supreme Court Act — Stay of execution after possession executed.
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13 December 2013 |
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A stay of execution pending appeal is discretionary and requires prospects of success and proof of irrecoverable relief.
Civil procedure — Stay of execution pending appeal — Discretionary remedy — Court may preview prospects of success — Requirement to show irrecoverability or risk of rendering appeal nugatory — Appeal challenging findings of fact; procedural defect; binding precedent.
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13 December 2013 |
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Taxing Master must re-tax every bill item; respondent aware of hearing and ordered to pay costs.
Civil procedure — Taxation of costs — Order 62 Rule 12 — Taxing Master must tax every item on bill — Default taxation and proof of service — Setting aside taxation — Costs for deliberate non-attendance.
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13 December 2013 |
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Conversion to a writ/statement made the matter open‑court, so no leave to appeal was required; stay refused after execution.
Civil procedure — originating summons converted to writ and statement of claim — open court vs chambers — requirement of leave to appeal to Supreme Court — stay of execution — effect of execution already carried out.
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12 December 2013 |
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12 December 2013 |
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Commencing separate proceedings to discharge a mortgage while related proceedings over the same property are pending is multiplicity of actions and an abuse of process.
Civil procedure – duplicity and multiplicity of actions – mortgage action under Order 88 RSC – applicability of general RSC/High Court Rules – counterclaim under Order 27/Order 15 – preservation order – abuse of court process.
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6 December 2013 |
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Appellate courts may enhance sentences; theft while posing as public officers is an aggravating factor justifying a maximum sentence.
Criminal law – Sentencing – Appellate jurisdiction to increase sentence on appeal (s.327 CPC) – Aggravating factor: theft committed while posing as public officers – Section 9(7) CPC dispenses with confirmation on first appeal.
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4 December 2013 |
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Single-witness identification upheld; uninvestigated alibi found non-prejudicial given overwhelming prosecution evidence.
Criminal law — Vandalism of public property — Identification evidence — Single identifying witness and corroboration — Duty to investigate alibi — Overwhelming prosecution evidence — Mistaken identity risks eliminated by prior acquaintance and adequate observation conditions.
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3 December 2013 |
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Conviction for aiding a prisoner's escape upheld on direct and compelling circumstantial evidence.
Criminal law – Aiding prisoner to escape – custody officer opening cells and permitting detainee to exit – direct and circumstantial evidence – guilty knowledge and adverse inference – Chimbini v The People applied.
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3 December 2013 |
| November 2013 |
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State must pay pre‑judgment interest under court rules; general damages permissible for breach of equitable right of first refusal, assessed as market value less contract price.
State proceedings – pre‑judgment interest – interaction of Section 20 State Proceedings Act and Judgment Act/High Court Rules; Interpretation of orders awarding "plus interest"; Equity – breach of right of first refusal – remedy by damages where specific performance impracticable; Distinction between general and special damages; Measure of damages: market value at contractual completion less contract price.
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27 November 2013 |
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Default judgment entered prematurely was irregular; respondent lacked locus standi to sue over the public Environmental Protection Fund.
Civil procedure – Default judgment – Irregular entry before 21 days contrary to Practice Direction – Effect of irregular default judgment; Constitutional/public law – Locus standi under Mines and Minerals Development Act s.123 – Private litigant cannot compel EPF payments; Environmental Protection Fund – claims against public fund are State prerogative; Frivolous and vexatious claims; Costs follow event.
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26 November 2013 |
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The plaintiff’s separate High Court claim for gratuity was barred by res judicata from a prior mediated settlement on terminal dues.
Res judicata – prior Industrial Relations Court complaint and mediation settlement – terminal employment dues (salary determination and gratuity) form one cause of action – prohibition of piecemeal litigation and multiplicity of actions.
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26 November 2013 |
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19 November 2013 |
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Court upheld trial judge’s discretion on costs, refused correction of alleged clerical error, and dismissed the appeal.
Costs — judicial discretion under Order 40 Rule 6; Instalment orders — merit and mootness where judgment debt paid; Correction of clerical errors — Order 20 Rule 11 inapplicable absent accidental slip; Leave to appeal out of time — procedural relief and subsequent grant by single judge.
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14 November 2013 |
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14 November 2013 |
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14 November 2013 |
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A successor that takes over and sells a judgment debtor’s assets may be joined post-judgment to enable enforcement.
Industrial Relations Court — functus officio after judgment — joinder of successor post-judgment — Rule 55 (ends of justice/abuse of process) — enforcement of judgment against transferee of assets.
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13 November 2013 |
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Non-parties adversely affected may apply to discharge an interlocutory injunction; Court may reopen its order for exceptional changed circumstances.
Civil procedure — interlocutory injunction — status of discharged ex parte orders — locus standi of non-parties to apply to dissolve injunctions — appellate court's inherent jurisdiction to reopen or rescind its interlocutory orders and receive fresh evidence — material change of circumstances (lifting of receivership; deportation) may render injunction nugatory.
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13 November 2013 |
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Equity imposed a constructive trust on both the State and the Administratrix for released seized funds; matter remitted for joinder and costs.
Equity — constructive trusts and tracing; disposal of seized exhibits; Prohibition and Prevention of Money Laundering Act s.18(4) — referral to High Court; limitation and equitable relief; joinder of necessary parties; costs on partial success.
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12 November 2013 |
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Local Government disciplinary rules do not bar criminal prosecution, but poor police investigation warranted acquittal.
Local Government Act — disciplinary/administrative procedures do not bar criminal prosecution; Penal Code — public servant liability; Criminal Procedure Code — right of persons to report offences; Criminal evidence — proof beyond reasonable doubt; police dereliction of duty and inadequate investigations.
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4 November 2013 |
| October 2013 |
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Appeal dismissed: employee lawfully dismissed for absenteeism after failing to report as transferred; no constructive dismissal proven.
Employment law – transfer and reporting instructions – absenteeism as dismissible offence under company disciplinary code – constructive dismissal claim – rules of natural justice – appellate interference with trial findings of fact.
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29 October 2013 |
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Consent order fulfilled by payment of the agreed global sum; no post‑fulfilment inquiry or account ordered; appeal dismissed.
Consent judgments – effect of full payment of agreed global sum – whether account or inquiry should be ordered post‑fulfilment; Order 23 High Court Rules and Order 43 RSC – scope and timing of inquiries/accounts; set‑off/deduction of overpayment; limits on reopening consent orders.
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29 October 2013 |
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Appellant was validly joined and served; Supreme Court’s final judgment bars reopening—appeal dismissed with costs.
Civil procedure – Joinder and service of process – Order to add party – Affidavit of service – Setting aside judgment – Finality of appeal – Representation by counsel – Default judgment.
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28 October 2013 |
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Interlocutory dismissal was improper where plaintiff produced available documents; sufficiency should be decided at trial.
Civil procedure — dismissal for want of prosecution — production of documents — expired employment permit — sufficiency of discovery assessed at trial, not interlocutory stage — application of High Court Rules (Orders 19, 41) vs Supreme Court Rules (Order 24).
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23 October 2013 |
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The respondent cannot use the slip rule to import substantive pension provisions into a final judgment.
Civil procedure — Rule 78 (slip rule) confined to clerical mistakes/accidental slips or omissions; cannot be used to import substantive words from another judgment or alter final decisions; Rule 48(7) mandatory — Notice of Motion must state grounds; finality of litigation; pension rules interpretation not correctable via slip rule.
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22 October 2013 |
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Tank Farm and electrical works were additional; some payments proved, many special damages unproved — assessment ordered.
Construction contract — extra works — Tank Farm and electrical works held to be additional to original contract; certified amounts and retention proven; particulars of special damages inadequately pleaded and not proved; delay excused by rains, subcontractor failures and regulatory interventions; assessment of unproven/general damages ordered.
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22 October 2013 |
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Dismissal for abandoning security post during riots upheld; procedural and statutory complaints not raised below rejected.
Employment law – dismissal for gross negligence – leaving security post during riots – compliance with s.26A (opportunity to be heard) – s.25(1) reporting of summary dismissals cannot be raised first on appeal – Industrial Relations Court Rules (Rule 42) – debarring vs default judgment – Court of substantial justice.
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18 October 2013 |
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18 October 2013 |
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Personal donation of government property during campaigns can be an illegal practice sufficient to nullify an election.
Electoral law — illegal practices — government developmental projects versus candidate conduct — personal donation of government property during campaign as illegal practice — section 93(2)(c) independent ground for nullification.
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10 October 2013 |
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A successful litigant is entitled to pre-judgment interest under Order 36, Rule 8; trial court erred in refusing it.
Civil procedure — Money judgments — Pre-judgment interest — Order 36, Rule 8 High Court Rules mandates interest from cause of action/writ to judgment — Purpose of interest: compensation for being kept out of money (Jefford v Gee).
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10 October 2013 |
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10 October 2013 |
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Life sentence for calculated sexual assault of a 3‑year‑old upheld; late remorse and first‑offender status insufficient for leniency.
Criminal law – Unnatural offence on a 3‑year‑old – Aggravating factors (calculated isolation, oral sexual assault, physical injury) – Late remorse minimal weight – Statutory minimum sentence and deterrence – Life sentence not excessive.
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8 October 2013 |
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Appellate court affirmed disciplinary dismissal where a factual substratum supported it, but ordered each party to bear own costs due to appellant’s impecuniosity.
Employment law – disciplinary dismissal – review limited to whether disciplinary body had authority and validly exercised it – appellate review may examine whether a substratum of facts supported dismissal; acquittal in criminal proceedings not dispositive in disciplinary/civil review; costs discretion and impecuniosity.
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7 October 2013 |
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7 October 2013 |
| September 2013 |
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A council must follow s.13 Lands Act re-entry procedure; foundations/slabs can constitute development, and purchasers have constructive notice.
Land law – Repossession and re-allocation by local authority – Section 13 Lands Act notice and right to make representations – Definition of "development" under Town and Country Planning Act (foundations/slab) – Constructive notice and purchaser's duty to inquire.
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26 September 2013 |
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Implied agency found; agent may remain liable for defaults of a subcontracted transporter despite absence of direct privity.
Agency law – implied agency; principal and agent; sub-agent/subcontractor liability; privity of contract; agent’s liability for sub-agent defaults; requirement to plead fiduciary breach.
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26 September 2013 |
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Whether retirees are entitled to revised repatriation rates and mealie meal subsidy under Circular B.15/1999.
Public service circulars — effective date and non-retrospectivity; repatriation allowance — entitlement limited to retirees on/after circular effective date; mealie meal subsidy — restricted to regular service personnel; humanitarian allowances — discretionary not enforceable; interest on delayed statutory payments — deposit and lending rates; High Court Rules Order 36 R8; Judgments (Amendment) Act s2.
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23 September 2013 |
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Equity enforces a tenant’s legitimate expectation to be offered property; tenant entitled to accounting for seized deposit and goods.
Equity and promissory estoppel — legitimate expectation of priority on a housing waiting list — enforceable promise to offer property; remedy by specific offer and accounting for seized deposit and goods.
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17 September 2013 |
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Appellants who continued working and accepting revised pay were held to have acquiesced to new terms and not entitled to terminal benefits.
Employment law – Variation of terms and conditions – Acquiescence by continued work and acceptance of revised pay – Voluntary Early Separation Scheme (VESS) – Constructive dismissal – Terminal benefits payable only upon termination – Section 97 ILRA bars appeals on findings of fact.
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13 September 2013 |
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Dismissal held unlawful where audit report was disowned and allegations were untested; appellant awarded pay, damages, and terminal benefits.
Employment law – Wrongful dismissal – Natural justice observed in procedure but dismissal unlawful for lack of evidential support – Reliance on untested/ disowned audit report – Remedies: suspension pay, six months' damages, terminal benefits, interest, costs.
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12 September 2013 |
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Loan agreement (with delivery notes and account) entitled the creditor to collect tobacco; only 500 kg was proved taken; counter-claim allowed.
Contract formation – loan agreement; parol evidence exception – delivery notes and farmer's statement; entitlement to collect crop under security for inputs; burden of proof on conversion; quantification of seized goods; counter-claim for outstanding inputs.
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11 September 2013 |
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Conviction and 45-year sentence for defilement upheld despite relatives’ evidence; independent medical and circumstantial corroboration sufficed.
Criminal law – Defilement – corroboration and danger of false complaint and false implication – suspect witnesses (relatives) cannot corroborate each other – independent corroboration by medical/arresting officer necessary – identity corroborated by presence/opportunity – sentencing – appellate interference only if manifestly excessive or wrong principles applied.
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3 September 2013 |