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[2023] ZAECQBHC 46
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E.M.D and Another v Fourie and Others - Reasons (2493/2019) [2023] ZAECQBHC 46 (17 August 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
OF
INTEREST
Case
No.: 2493/2019
Date
Heard: 3 August 2023
Made
available: 17 August 2023
In
the matter between:
E[…]
M[…] D[…]
First
Applicant
D[…]
D[…]
Second
Applicant
And
JOANNE
FOURIE
First
Respondent
RENIER
POSTUMOUS
Second
Respondent
ETHEL
STEVENS
Third
Respondent
CHARLES
BEKKER
Fourth
Respondent
KAPLAN
BLUMBERG ATTORNEYS
Fifth
Respondent
THE
REGISTRAR OF DEEDS
KING
WILLIAMS TOWN
Sixth
Respondent
REASONS
EKSTEEN
J:
[1]
In this matter the applicants sought to vindicate an
immovable
property registered in the name of the first respondent, Ms Joanne
Fourie. On 3 August 2023 after hearing the applicants
in person
and counsel for the first, second and fourth respondents, I made the
following order:
“
1
The following agreements purportedly concluded between the Applicants
and the First Respondent
are declared to be invalid and unlawful and
of no force and effect:
1.1
Deed of Sale entered into dated 16 February 2018;
1.2
Power of Attorney to pass transfer dated 16 April 2018.
2.
The agreements listed in paragraph 1 above are set aside.
3.
The Applicants are entitled to restitution of ERF 9[…], B[…],
Port Elizabeth,
also known as […] A[…] Street, Salt
Lake, Port Elizabeth.
4.
The First Respondent is to sign any and all documentation necessary
to effect transfer of
the property back to the Applicants.
5.
The Fifth Respondent is to attend to the conveyancing procedures
related to transferring
the property back into the names of the
Applicants.
6.
The Second, Third and Fourth Respondents pay the costs arising in
respect of the transfer
of the property into the name of the
Applicants, the one paying the others to be absolved.
7.
The First Respondent pay the costs of the application.”
I indicated at the time
that the reasons for my order would follow. These are my
reasons.
Background
[2]
The first applicant, Ms E[…] D[…], and
the second
applicant, Mr D[…] D[…] had been married to one another
on 26 December 1987. During the subsistence
of their marriage
they acquired the immovable property situated on erf 9[…],
B[…], Port Elizabeth, also known as
[…] A[…]
Street (the property). The property was bonded in favour of
Standard Bank of SA Limited and was registered
jointly in the names
of Ms D[…] and Mr D[...], as co-owners. On 30 August
2011 they were divorced, but, notwithstanding
the divorce, they
retained the property as joint owners. Initially, Mr D[...]
remained in occupation of the property until
his remarriage in 2013,
when he and his new wife moved out of the property. Ms D[...]
and the children born of their union
returned to reside in the
property.
[3]
During approximately 2012, while Mr D[...] was still
resident in the
property, he began to experience employment difficulties and was
unable to meet his obligations to Ms D[...] in
respect of the bond
payments to Standard Bank. Ms D[...] tried to make payment of
the bond which placed strain on her finances.
Thus, in 2016, Ms
D[...], too, moved out of the property to rent premises nearby.
The property was then let, and although
the papers do not deal with
the rental income, as a matter of law, it accrued in equal shares to
Ms D[...] and Mr D[...] respectively.
[4]
Over time the applicants fell further in arrears on their
bond
payments with the result that Standard Bank took judgment against
them on 19 September 2017 in the amount of R50 000,00 together
with
interest thereon. Pursuant to the judgment Standard Bank
proceeded to advertise a sale in execution in respect of the
property
which was scheduled for 16 February 2018.
[5]
Shortly before the sale in execution was to proceed the
third
respondent, Ms Ethel Stevens, who was employed by Standard Bank and
who has since passed away, approached Ms D[...] and advised
that she
knew a person, the second respondent, Mr Postumous, who could assist
in preventing the bank from selling their home.
Thus, Ms
D[...], who had in the interim been remarried to one John Jacobs, was
introduced to Mr Postumous. What occurred
thereafter is the
subject of considerable factual dispute. Ms D[...] contended
that she had been advised by Mr Postumous
that Ms Fourie would
advance a loan to her in order to pay off the bond obligation and
that she would hold the property as security
for the loan until it
was repaid. For this purpose she was taken to the offices of
the fifth respondent where various documents
were drawn up and signed
and she believed that they related to the said loan. Ms Fourie was
not present during these negotiations,
which were conducted by Mr
Postumous and Mr Bekker, the fourth respondent, on her behalf.
[6]
In fact, the documents that were signed constituted a
deed of sale in
respect of the property which was sold to Ms Fourie for R70 000,00
and the seller was reflected as Ms D[...] and
Mr D[...].
However, it is common cause that in fact John Jacobs, Ms D[...]’s
husband, signed as Mr D[...]. He
forged Mr D[...]’s
signature. Ms D[...] alleged that Mr Postumous, Mr Bekker, an
estate agent, and Ms Cradock, an attorney
in the employ of the fifth
respondent, knew of his true identity and that they had advised him
to sign, as if he were Mr D[...],
because of the urgency of the
matter. Accordingly, the applicants alleged that Ms Fourie had
fraudulently obtained registration
of the property with the
concurrence of Mr Postumous, Ms Stevens and Mr Bekker.
[7]
As I have said, there is a considerable factual dispute
relating to
the events which occurred at the offices of the fifth respondent.
Ms Fourie said that she had been approached
by Mr Bekker, who had
advised her of the predicament of the applicants and the threatening
sale in execution and suggested that
there was an opportunity to
purchase the property at a reasonable price, subject to the
applicants’ right to repurchase the
property later, at an
increased price, so as to ensure a profit to her. Thus, the
respondents said that Mr Postumous had
advised Ms D[...] orally that
she could repurchase the property for R120 000,00 when she was able
to. The first, second and
fourth respondents contended that the
applicants were at all times aware thereof that the property was to
be sold.
[8]
It is common ground that Ms D[...] repaid an amount of
R50 000,00 to
Mr Postumous on 17 March 2018 and a further R10 000,00 on 19 January
2019. These amounts were accepted and
retained by Mr Postumous
and there is no tender to return these funds. Ms D[...]
contended that the money was paid in reduction
of the loan.
However, the respondents argued that Ms D[...] had intended to
repurchase the property and that the said amounts
have been received
as part payment of the purchase price. They said that a
contract of sale could not be completed in respect
of the repurchase
because Ms D[...] had not been able to raise the R120 000,00 referred
to earlier.
[9]
Approximately two months after signature of the deed
of sale Ms
D[...] and Mr Jacobs again attended at the offices of the fifth
respondent and signed a power of attorney to pass transfer
of the
property to Ms Fourie, and again Mr Jacobs forged the signature of Mr
D[...]. The property was duly registered in
the name of Ms
Fourie pursuant to this power of attorney and the bond commitment to
Standard Bank was relieved.
[10]
As adumbrated earlier, the property had been let and the deed of sale
records
that the purchase was subject to the rights of the existing
tenants. Notwithstanding this recordal, after the transfer of
ownership had been registered in the deeds office and in May 2019, Ms
Fourie proceeded with an application to evict the applicants
and all
persons occupying through them from the premises. That prompted
the present litigation.
[11]
The dispute of fact, and the allegations of fraud, cannot be resolved
on the
papers. However, I consider that the application may be
resolved without resort to these disputes. It is common cause
on the papers, as adumbrated earlier, that Ms Fourie, as purchaser,
never negotiated either with Ms D[...] or Mr D[...].
All the
negotiations were conducted by Mr Postumous, Ms Stevens and Mr
Bekker. The applicants were estranged from one another
and Mr
D[...], as co-owner with Ms D[...], was never consulted in respect of
the sale and was not party to the transaction. He
did not sign
the deed of sale nor did he sign the power of attorney to pass
transfer and he was, at all times, entirely unaware
of the process.
As I have said Mr Jacobs forged his signature.
The
Deed of Sale
[12]
Section
2(1) of the Alienation of Land Act
[1]
(the Act) provides:
“
No alienation of
land after the commencement of this section shall, subject to the
provisions of section 28, be of any force or
effect unless it is
contained in a deed of alienation signed by the parties thereto or by
their agents acting on their written
authority.”
[13]
As
adumbrated earlier, Mr D[...] was a co-owner of the property and he
did not sign the deed of sale nor did he authorise Mr Jacobs
in
writing to do so on his behalf. The deed of sale was therefore
of no force or effect at the time. Because the invalidity
is
prescribed by statute an estoppel cannot be invoked to make it
legal.
[2]
Mr
White
,
on behalf of the respondents, did not argue the contrary.
[14]
Since
Wilken
[3]
it has been trite that “[a] transaction which has no force or
effect is necessarily
void
ab initio
,
and can in no circumstances confer any right of action.”
[4]
Section
28(2) of the Act
[15]
However, the invalidity of the contract, as stipulated in s 2(1), is
subject
to the provisions of s 28 of the Act. Section 28(2)
provides:
“
Any alienation
which does not comply with the provisions of section 2(1) shall in
all respects be valid
ab initio
if the alienee had performed
in full in terms of the deed of alienation or contract and the land
in question has been transferred
to the alienee.”
[16]
Section 28(2) gives statutory effect to the judgment in
Wilken
where the Appellate Division held:
“
It by no means
follows that because a court cannot enforce a contract which the law
says has no force, it would therefore be bound
to upset the result of
such a contract which the parties had carried through in accordance
with its terms.”
[5]
Accordingly, what s 28
requires is full performance by all parties to the contract.
Partial performance, or full performance
by one of the parties, would
not suffice to cloth the transaction with validity.
[6]
[17]
It is not disputed that Ms Fourie had performed in full in terms of
the contract
and the bond registered over the property was cancelled
and extinguished by payment of the purchase price to Standard Bank.
The more difficult question relates to whether the property has been
transferred to Ms Fourie.
[18]
As
adumbrated earlier, s 28 contemplates full performance by all parties
to the contract. Mere registration at the deeds office
would
not suffice, rather, the transfer of ownership is required. The
law in South Africa has accepted that the abstract
system applies to
the transfer of ownership in movable and immovables alike.
[7]
In
Legator
McKenna
the Supreme Court of Appeal explained:
“
[22]
In accordance with the abstract theory the requirements for the
passing of ownership are twofold, namely delivery - which in
the case
of immovable property is effected by registration of transfer in the
deeds office - coupled with a so-called real agreement
or 'saaklike
ooreenkoms'. The essential elements of the real agreement are an
intention on the part of the transferor to transfer
ownership and the
intention of the transferee to become the owner of the property …
Broadly stated, the principles
applicable to agreements in general
also apply to real agreements. Although the abstract theory does not
require a valid underlying
contract, eg sale, ownership will not pass
- despite registration of transfer - if there is a defect in the real
agreement.”
[8]
[19]
As I have explained, in this instance,
Mr D[...], as a joint owner, was at all material times unaware of the
transaction until the
application for the eviction was filed.
He did not participate in the conclusion of the contract of sale, did
not authorise
the transfer of his property and did not intend to
transfer his right of ownership to Ms Fourie. As a general rule
a party
cannot be deprived of his property without his consent and,
accordingly, the absence of the participation of Mr D[...] as joint
owner, constitutes a defect in the real agreement and cannot be cured
by the provisions of s 28(2). Thus, the registration
in
the deeds office, of its own, did not pass transfer of ownership in
the property of Mr D[...].
[20]
So,
one may rightly ask: what of Ms D[...]’s intention as
manifested in the deed of sale and power of attorney?
A
co-owner may, in law, dispose of their undivided share in property
without recourse to other co-owners. I accept, for purposes
of
this judgment, as I am bound to do
[9]
,
that Ms D[...] was at all times aware of the fact that she was
signing an agreement of sale and a power of attorney to pass
transfer.
However, Ms Fourie did not intend the purchase price
to be in respect of a 50% undivided share in the property. She
intended
to take transfer of the unencumbered ownership of the entire
property. Ms D[...], on the other hand, did not own the
property
and as a matter of law could not deliver more than what she
had, namely, her undivided share. On the undisputable facts
presented
in this matter the seller (Mr and Mrs D[...]), and in
particular Mr D[...], has not performed fully in terms of the
contract as
envisaged in s 28 of the Act. Again, Mr
White
,
for the respondents, did not contend otherwise.
Estoppel
[21]
Recognising this difficulty, the
respondents contended that Mr D[...] is estopped from denying his
intention to pass transfer of
ownership and so to deny the validity
of the real agreement. The averments underlying the estoppel
advanced proceeded as
set out hereafter. Mr D[...], so the
respondents contended, had entirely abandoned the immovable property
and had not made
any payments towards the bond obligation since
2012. Thus, they argued that he had reconciled himself with the
fact that
Ms D[...] would be responsible for the repayment of the
mortgage loan agreement with Standard Bank and, if she was unable to
do
so, that the immovable property would be sold by way of auction.
The auction was indeed scheduled for 16 February 2018, the
day upon
which the deed of sale was signed. The respondents alleged
further that in abandoning his rights in respect of the
immovable
property, by allowing Ms D[...] to make each and every decision
relating to the immovable property without any input
from himself
subsequent to 2012, the second applicant as co-owner of the immovable
property intentionally, alternatively negligently,
through his
conduct, created the impression that Ms D[...] and John Jacobs were
persons lawfully in the position to conclude a
binding agreement of
sale in respect of the immovable property. They said further
that, as a consequence of the misrepresentation
by the applicants,
relied upon by Ms Fourie, she had acted to her prejudice.
[22]
As
explained in
Legator
McKenna
the principles applicable to agreements in general also apply to real
agreements. There are no statutory requirements for
the
validity of a real agreement and, accordingly, whilst an estoppel
cannot be raised to render lawful what the legislator has
declared to
be unlawful under s 2(1) of the Act, it may legitimately be raised to
defeat a seller’s denial of the real agreement.
[10]
[23]
Generally,
the courts are not easily persuaded to hold that a owner is estopped
from vindicating their property.
[11]
A party seeking to raise an estoppel in these circumstances must
establish:
(a)
That
there had been a representation by the owner, by conduct or
otherwise, that the person who disposed of his or her property
was
the owner of it or was entitled to dispose of it;
(b)
the representation must have been made
negligently in the circumstances.
(c)
the representation must have been relied
upon by the person raising the estoppel; and
(d)
a
reliance upon the representation must be the cause of their acting to
their detriment.
[12]
[24]
As
I have explained, the respondents rely on an estoppel by conduct.
In our law a person may be bound by a representation
constituted by
conduct if the representor should reasonably have expected that the
representee might be misled by his conduct and
if, in addition, the
representee acted reasonably in construing the representation in the
sense in which the representee did.
[13]
[25]
As I have said Ms Fourie, as purchaser,
had no interaction of any nature with the applicants prior to
signature of the agreement.
She said in her answering affidavit
that she was unable to comment on the bond repayments history during
the subsistence of the
co-ownership because the applicants had not
annexed the banking statements to their founding papers. She
declared:
“
As
is evident from the First Applicant’s Founding Affidavit the
Applicants had already been divorced for a period of time,
with the
Second Applicant having effectively abandoned all responsibility in
respect of the immovable property herein.”
[26]
I do not consider that it is evident
from the first applicant’s founding affidavit that Mr D[...]
had effectively abandoned
all responsibility in respect of the
property. He remained in occupation until his remarriage and
thereafter permitted the
first applicant to reside in the property
with their children. His inability to meet his financial
obligations were beyond
his control and no basis was laid for the
suggestion that it amounted to an abandonment of his rights in the
property. It
is apparent that the property was let from 2016
and it is not known how the rental income was divided. It is
also not evident
from the papers whether the rental was used to make
payments to Standard Bank on the bond, but, significantly, there is
no allegation
in Ms D[...]’s founding affidavit that he had
abandoned his responsibilities. More importantly, it is
apparent from
the first respondent’s own averments that she had
no knowledge of the history of repayments, or of the occupation of
the
property when she signed the deed of sale or at the time of the
registration of transfer. The argument arose
ex
post facto
and is rooted in Ms
Daniel’s founding affidavit in this application. Thus,
the respondents have not demonstrated any
reliance on these
circumstances at the time of the transaction.
[27]
The
uncontradicted evidence of Ms D[...] is that she and the children
resided in the property from 2013 to 2016. However,
it has been
held that mere entrusting of possession to the possessor is not
sufficient to constitute a representation that the
possessor was
entitled to dispose of the property. It must be entrusted with
indications of ownership or entitlement of disposal.
[14]
In
Adams
[15]
De Villiers CJ explained:
“
In
regard to the case of a person who has lent or let or otherwise
entrusted his goods to another I am clearly of the opinion that
he
does not lose his right of vindication if the goods are improperly
parted with, unless he has so entrusted his goods under such
circumstances which might fairly and reasonably induce third persons
to believe that the ostensible owner was the real owner or
had
authority from the true owner to dispose of the goods. The
burden of proving that such circumstances exist lies upon
the one who
resists the owner’s right of vindication.”
[28]
The
onus is not easily discharged as explained in E
lectrolux
[16]
where Trollip J remarked:
“
[t]he
Court should not be quick or over anxious to infer from an owner's
conduct, including his negligence, a representation that
the
possessor is vested with the
dominium
or
jus
disponendi;
the conduct should be such as to proclaim
clearly and definitely to all who are concerned that the possessor is
vested with
the
dominium
or
jus
disponendi;
secondly, if the owner's conduct does measure up
to that high standard, the Court should then scrutinise the evidence
of the
respondent carefully and closely to ascertain whether the
representation was indeed the real and direct or proximate cause
of
the respondent believing that the possessor did have
the
dominium
or
jus disponendi
.”
[29]
A divorced man’s consent to his
former wife to live in the property, owned jointly by them, in order
to house his children
does not signal to a reasonable person that she
is entitled to deal with the property to his exclusion. As I
have said, she
was not even in occupation at the time of the sale of
the property, which was let at the time, and it is not alleged that
Mr Jacobs
ever occupied the property. No facts have been
alleged as to how the contract of lease was concluded, what role Mr
D[...]
played in it or who received the rental. Accordingly, no
foundation was laid for the conclusion that second respondent had
“abandoned his rights” in respect of the property.
I do not consider that Ms Fourie could reasonably have construed
from
these circumstances that Ms D[...] and John Jacobs were the persons
lawfully in a position to conclude a binding agreement
of sale.
[30]
The respondents have not demonstrated
any reliance on a representation, whether oral or by conduct, by Mr
D[...]. On the contrary,
the transaction came about by virtue
of their knowledge of the pending sale in execution and the judgment
obtained by Standard
Bank. The judgment had been obtained
against Mr and Ms D[...]. They were registered in the deeds office as
joint owners.
The offer of purchase, prepared on behalf of Ms
Fourie, recognised Mr D[...]’s right of ownership and reflected
the seller
as Mr and Ms D[...]. They did not believe that Mr
Jacobs was entitled to sign the contract, on the contrary, on
respondents’
version Mr Jacobs was an imposter and represented
to them that he was in fact Mr D[...]. The power of attorney
signed nearly
two months later also recognised Mr Daniel’s
right of ownership and the necessity for his signature. Again,
no reliance
was placed on any representation made by Mr D[...],
because they believed that Jacobs was Mr D[...] and they required his
signature
because they recognised his interest in the property.
[31]
Whether
the respondents in fact knew that Jacobs was not authorised to sign,
and was not Mr D[...], cannot be determined without
resolving the
dispute of fact, which cannot be done on the papers. However,
on their own version the respondents did not
rely on any
representation made by Mr D[...], rather, they relied on the
representation by Mr Jacobs that he was in fact Mr D[...].
For
an estoppel to succeed the respondents had to establish that the
appearance, the representation, had been created by Mr D[...]
himself. The fact that Jacobs held himself out to be Mr D[...],
or his agent, cannot assist.
[17]
[32]
In conclusion, the respondents have not
established an estoppel which could detract from Mr D[...]’s
uncontradicted denial
of any participation in or knowledge of the
transaction. The result is that ownership did not pass and the
deed of sale and
the power of attorney, at least to the extent that
it relates to Mr D[...]’s right of ownership, were of no force
or effect
and are to be set aside. The applicants are therefore
entitled to restitution of the property.
[33]
The nullity of the agreement of sale
entitles the applicants to vindicate their property. Section
28(1) of the Act provides
that a person who has performed partially,
or in full, in terms of an alienation of land which is of no force or
effect in terms
of s 2 of the Act is entitled to recover from the
other party that which he has performed under the alienation or
contract, together
with interest and other expenses as detailed in s
28(1)(a). As I have said, it is common ground that a
substantial portion
of the purchase price was repaid shortly after
the conclusion of the contract and when the parties appeared before
me Mr D[...]
tendered to repay the balance of the purchase price.
Neither party has presented evidence of the financial issues which
flow
from s 28(1) and it is accordingly not possible in this judgment
to deal with the respondents’ entitlement under s 28.
I
accordingly made no order in respect thereof.
[34]
As adumbrated earlier, Ms Fourie played
no part in the negotiations which were conducted by Mr Postumous, Ms
Stevens and Mr Bekker.
Accordingly, the applicants sought an
order that they pay the costs occasioned by the retransfer of the
property into the names
of the applicants. On the facts
presented I consider it to be fair.
[35]
For these reasons I issued the order set
out earlier.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
1
st
& 2
nd
Applicants:
In
Person
For
1
st
, 2
nd
& 4
th
Respondents:
Adv
White
instructed
by
Manilal
Brewis Attorneys, Gqeberha
[1]
Act 68 of 1981
[2]
Trust
Bank van Afrika Beperk v Eksteen
[1964] 3 All SA 507
(A),
1964 (3) SA 402
(A);
Strydom
v Die Land- en Landboubank van Suid-Afrika
[1972]
2 All SA 22
(A),
1972
(1) SA 801
(A)
at
815B-C
;
and
Eastern
Cape Provincial Government and Others v Contractprops 25 (Pty) Ltd
[2001]
4 All SA 273
(A);
2001
(4) SA 142
(SCA)
[3]
Wilken
v Kohler
1913
AD 135
[4]
Wilken
at
p.
143
[5]
Wilken
at p. 144
[6]
Christie’s:
The Law of Contract in South Africa
(8
th
ed) p. 158
[7]
Legator
McKenna Inc and Another v Shea and Others
2010 (1) SA 35
(SCA) at 44 para [21]
[8]
Legator
McKenna
at para [22]
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C
[10]
Oriental
Products (Pty) Ltd v Pegma 178 Investments
Trading
CC and Others
2011
(2) SA 508
(SCA) at para [31]
[11]
For example, Grosvernor
Motors
(Potchefstroom) Ltd v Douglas
1956 (3) SA 420
(A) at 427D
[12]
Silberberg
and Schoeman’s: The Law of Property
(5
th
ed) p. 255-256;
Amler’s
Precedents of Pleadings
(9
th
ed) p. 188
[13]
Concor
Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
2004
(6) SA 491
(SCA) at 495A-C; and
Leeuw
v First National Bank
2010
(3) SA 140 (SCA)
[14]
Electrolux
(Pty) Ltd v Khota and Another
1961
(4) SA 244
(W) at 247B, referred to with approval in
Oakland
Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Limited
1976
(1) SA 441
(A) at 452E; and
Konstanz
Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk
[1996] ZASCA 28
;
1996
(3) SA 273(A)
at 286E-H.
[15]
Adams
v Mocke
(1906)
23
SC 782
at 788
[16]
Electrolux
at p. 250C-E
[17]
Compare
Broekman
v TCD Motors (Pty) Ltd
1949 (4) SA 418
(T) where the owner of a motor vehicle delivered not
only the registration papers of the vehicle, but also the notice of
change
of ownership. Nevertheless, the court held that the
inducing cause was not the handover of these documents, but the
fraudulent
representation of the third party that he was acting as
agent for the owner and consequently the owner was not estopped from
vindicating his vehicle. The approach in
Broekman
was applied in
Saambou
National Building Society v Friedman
1977 (3) SA 268
(W).