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[2021] ZAGPPHC 364
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South African Medical Association v South African Medical Association Trade Union and Another (9258/2021) [2021] ZAGPPHC 364 (28 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 9258/2021
DOH
9 MARCH 2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter of:
SOUTH
AFRICAN
MEDICAL
ASSOCIATION
APPLICANT
and
SOUTH
AFRICAN MEDICAL ASSOCIATION
TRADE
UNION
FIRST
RESPONDENT
GERHARD
VOSLOO N.O.
SECOND
RESPONDENT
JUDGMENT
THIS
JUDGMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE CIRCULATED TO THE
PARTIES BY WAY OF EMAIL. ITS DATE AND TIME OF
HAND
DOWN SHALL BE DEEMED TO BE
28
MAY 2021.
Bam
AJ
Introduction
1.
This is an urgent application for a
final interdict by the South African Medical Association NPC (SAMA)
to restrain the respondents
from publishing injurious falsehoods
about SAMA and unlawfully interfering with
the
SAMA's contractual relationship with its
members
.
Despite
two requests for an undertaking that
the
respondents will desist from their unlawful conduct,
they
refused to provide same
.
In the result, SAMA claimed in its
papers that it is left with no adequate alternative
but
to approach this court. As basis for the relief sought, SAMA referred
to a notice issued by the South African Medical Association
Trade
Union, SAMATU, and
its
administrator on 9 February 2021 (the notice). I shall reproduce the
notice shortly. SAMA makes three succinct submissions about
the
notice.
It
contends
in the
first
instance that the statements made therein are false and are
calculated to cause harm to SAMA and that SAMATU published those
falsehoods
knowingly. SAMA states that the statements are framed to
induce
its
members
to terminate
their
membership
with SAMA, thus amounting to unlawful interference with the
contractual relationship SAMA has with its members. Finally,
SAMA
submits that in addition to the injury to its reputation and good
name, it stands to suffer financial loss should SAMATU persist
in its
unlawful conduct. As further contention, SAMA states that as a
person, (juristic non-profit entity), it has a right to conduct
its
business without unlawful interference, whether by respondents or any
other
party.
2.
In their response, SAMATU and its
administrator, to whom I shall refer to collectively as SAMATU, began
their case by asking for
condonation for the late filing of their
answering affidavit. Given the circumstances of the case and the
explanation, I granted
condonation. SAMATU denied that there was any
urgency in SAMA's case and asked the court to dismiss the application
with punitive
costs. They denied acting unlawfully or that they were
competing with SAMA in any way, let alone unlawfully. They stated
that the
notice was sent by SAMATU to those of its members who are in
its data-base. They add that, unlike SAMA, they are unable to
distinguish
between an employed and unemployed doctor. They state
that with the database of doctors in its hands, SAMA has not only
sent renewal
notices for SAMA membership but has loaded debit orders
of doctors who are not SAMA members. In this regard
,
they conclude that SAMA, is engaged in
the unlawful conduct of poaching SAMATU's members
.
They referred the court to several
pieces of SAMA's communication, about which I shall say more in the
course of this judgment,
and submit that SAMA has approached this
court with unclean hands. In short, SAMATU asserts that its conduct
in publishing the
notice was only aimed at stemming the tide of
losing membership
because of SAMA's
conduct of unlawfully interfering in SAMATU's contractual
relationship with its members.
3.
After
carefully considering the parties' submissions and their papers, I
was persuaded that SAMA may not obtain substantial redress
in due
course
[1]
and that the case made
by the applicants was sound in law and granted the relief on 9 March
2021.
4.
I consider it necessary to record that
sometime late in April, my attention was drawn to an email sent by
the respondents to the
registrar who was assisting this court during
March, seeking reasons for the order I had made. It appears that
technical problems
with the court e-mail communication system delayed
the transmission to the registrar. In that same month of March, the
registrar
took ill and spent some
time
away from work convalescing. By the time the communication reached
me, my hands were full with the work as per the duty roster
hence the
reasons are only provided today.
Background
5.
Going through the record, it is
undeniable that these two entities, which were once joined in the
hip, have been involved in a protracted
public disagreement, which
has seen them in and out of courts. In my assessment of
the
situation, the present issues can easily
be disposed of, keeping a bird's eye view of their history, but
without
the
need
to immerse oneself into the parties' litigious history. The events
leading to the present litigation began with a notice published
by
SAMATU on 9 February 2021, titled,
'RENEWAL
NOTICE FROM THE SAMA NPC'. The notice
reads:
'We
have been notified by some of our members that they have received
membership renewal notices from SAMA NPC and hereby wish to
clarify
that SAMATU will never send a request for members to renew their
membership. The motive is to coerce SAMATU members in
terminating
their SAMATU membership and join SAMA NPC
.
This
is
another desperate attempt by SAMA NPC to remain relevant in light of
their various unsuccessful legal actions against SAMATU
.
SAMATU hereby reiterates that only
registered and recognised Trade Unions have
locus
standi
to represent the rights and
interests of the state employed doctors
.
Members should therefore note that while
SAMA NPC is coercing them to terminate their Trade Union membership,
SAMA NPC will not
be allowed to represent them on any employer
employee related matters as it has no
legal
standing in the Public Service to
function as a Trade Union. Members are advised not to cancel
membership through panic
.
You
are guaranteed that your rights are protected and shall always be
represented with diligence and respect (our current
track
record speaks for itself)
.
The only change you can expect from
SAMATU is a progressive service delivery beyond expectation. You do
not have to renew membership
and you remain a valued and loyal member
of SAMATU. We urge members that may need
clarity on this matter to contact us
on... Please visit out website .
.
.
Regards, SAMATU'
6.
It is common cause that, after learning
of the publication, SAMA dispatched a letter to SAMATU's attorneys,
on 16 February 2021,
calling for an undertaking that SAMATU will
desist from further unlawful conduct. SAMATU responded to the letter
but
failed
to provide the undertaking sought. Instead, it proposed that the
parties issue a
joint
statement to their members to explain the split. SAMA contends that a
joint statement is not an appropriate solution to the current
issue
facing
the
parties. In any event, states SAMA, the parties have previously
issued a joint statement explaining the
split
to their members. In a further letter issued on 18 February, SAMA
again called for the undertaking. This time, it indicated that,
absent the undertaking by 12h00 on the same day, it had intention to
approach the court for urgent relief. It is common cause that
SAMATU
did not provide the undertaking.
SAMA's
case
7.
Describing itself with reference to its
Memorandum of Association, SAMA states
that
one of its objectives is to represent the medical profession with
authority
and
credibility, collectively and individually, on matters pertinent to
the profession and to act as the principal, and the coordinating
body
for the medical profession. SAMA states that it has a professional
image to protect in order to foster not only integrity
and
accountability but to champion professional ethical standards. It
says
in
its
papers that it serves the needs of its members and advocates their
autonomy to enable them to function optimally as professionals,
which
ultimately influences
and
shapes the healthcare environment in this
country.
8.
With regard to the notice, SAMA states
that membership in its organisation runs for one year, from January
to December and must
be renewed annually. To encourage its members to
renew, SAMA sends renewal notices at the commencement of each year,
preferably,
by no later than 28 February. SAMA submits that its
renewal notice cannot, by any stretch of the imagination, be
calculated to
amount to coercion of SAMATU members to terminate their
membership with SAMATU and join SAMA. In that regard, the notice,
submits
SAMA, is plainly false and misleading. With regard to the
point made in the notice that it will not be allowed to represent
doctors
in
employer / employee matters
,
SAMA states these statements are not
only false but are harmful to its image
.
It states that there is nothing in law
preventing SAMA
fr
om
representing its members in employment issues, such as procuring
legal assistance. It makes it plain that its services would
exclude
those preserved for registered
t
rade
unions. SAMA further states that the notice attempts to persuade SAMA
members not to renew their membership with SAMA. It concludes
by
stating that SAMA
T
U
'
s
conduct is harmful and improperly interferes with SAMA's relationship
wit
h
its
members. It adds that should SAMATU not be stopped in its unlawful
condu
c
t
,
it stands to suffer financial prejudice
,
in addition to the harm to its name
.
SAMATU's
case
9.
The affidavit filed by SAMATU contains
the full exposition of the parties
'
history
f
rom
the birth of SAMATU's predecessor
,
followed by its name change that brought
a
b
out the
current trade union
,
SAMATU
,
all the way to the court order
appointing the second respondent. It also dealt extensively with
previous and current litiga
ti
on,
including its pending application in a bid to wind up SAMA, and the
acrimon
i
ous
relationship the parties have with each other
,
in particular when it comes to the
financial affairs of the two entities that were once held under one
roof and SAMA
T
U
'
s
access to the data base of members. Ultimately
,
in an effort to lay foundation fo
r
its claim that it issued the notice of 9
February 2021 in order to stem the tide of losing members, SAMATU
submitted that its conduct
must be assessed in light of SAMA
'
s
conduct with reference to various publications
,
wh
i
ch
SAMATU claims amoun
ts
to
interference with its own contractual relationship wi
t
h
i
ts
members. It further
refe
rr
ed
the court to communication with some
doctors who are members of the
first
respondent.
10.
I record at this early stage that SAMATU's notice or circular of 9
February 2021, which
is
pellucid
from the title of the notice itself, was said to be directed at
SAMA
'
s
renewal
notice. In establishing whether
SAMA has
met
the
requirements in
order
to
succeed
on a claim for injurious falsehoods, I
consider
the content of SAMA's renewal notice,
SAMATU's notice of 9 February, and its
further
submissions
to
this
court
.
The
law
11.
It
is a long accepted principle in our law that the
conduct
of
spreading disparaging statements and falsehoods about a competitor,
its
goods
or
services, in order
to
gain
improper advantage may, where
it
results
in a loss,
found
a
claim in delict
[2]
.
In
order
to succeed in
its
claim
therefore, SAMA has to prove the following:
(i)
that
SAMATU had spread falsehoods to others about SAMA's
name;
(ii)
that SAMATU did
so
knowing that
the
statements
or representations
were
false;
(iii)
that
SAMATU's
conduct led to SAMA suffering a loss; and (iv) that
the
loss
or likelihood
thereof
was
a
direct result of SAMATU's unlawful
conduct
[3]
.
12.
As
to the requirements for a final interdict, SAMA has to establish (i)
a clear right
;
(ii)
an injury actually committed or reasonably apprehended; and (iii) the
lack of an adequate and alternative remedy. [See in this
regard
Masstores
(Pty) Limited v PicknPay Retailers (Pty) Limited
[4]
.]
Whether
SAMATU spread falsehoods about SAMA's renewal notice in its circular
of 9 February 2021
13.
To
properly answer this question
,
one
must refer to the renewal notice issued by
SAMA.
It is annexed to the founding affidavit
[5]
under
cover of a letter by a Dr MVJ Nhlapho. As the form is a standard form
calling for personal detail and various elections as
to whether a
doctor wants to pay by EFT or by debit order
,
I
only deal with the content of the cover letter
.
It
reads
:
'
Dear
Dr
.
.
.SAMA
would like to send this renewal notice electronically and therefore
requires your email address. Please make sure you comp
l
ete/update
the email address field on the ren
e
wa
l
not
i
ce
below
.
Thank
you for your continued support. Herewith please find you
r
South A
frica
n
Medical Association Renewal Notice indicating your 202
1
subscr
i
ption
fee
.
Kindly
update your details and return the updated information to us If no
changes are made there is no need to return this form
.
.
.. If
paying SAMA membership through a monthly debit order instruction
,
t
he
deduction will continue automatically from the end of January 2021
Sincerely.'
14.
SAMATU, in the notice of 9 February
,
contends that SAMA will not be allowed
to represent its members on any
employer/ employee related matters as it has no legal
standing.
In its answering affidavit, it contends that SAMA is misleading
members when it states that it can offer the services
it used to
offer its members via the union when it was still in-house. No doubt
the statements about what either party is capable
of providing its
members goes to the heart of competition. However, is the statement
as set out in the notice accurate? It has
not been disputed by SAMATU
that SAMA need not be a trade union to assist its members in some
employer / employee matters, but
it certainly cannot provide those
services that are only meant to be provided by a trade union. In this
regard, SAMA states that
it does not intend to function as a trade
union, but there is nothing in law preventing it from assisting
employed doctors in employer/employee
issues at no additional cost to
its members. One such example is the provision of legal assistance in
disciplinary matters. To
conclude on this issue, the assertion by
SAMATU rings hollow in the face of the myriad of voluntary
associations, whether professional
or non-professional
,
that provide assistance to their members
on employer and employee
matters.
15.
Could the content of the renewal notice,
as reproduced in paragraph 12 of this judgment, be said to be an act
of coercing members
of SAMATU to terminate their membership with the
latter in desperate attempt to remain relevant on the part of
SAMA? Nothing in the content of the
cover letter of the renewal notice can, by any stretch of the
imagination, be calculated to
coerce members to terminate
t
heir
membership with SAMATU. In support of its claims, SAMATU referred
this court to various material annexed to its answering affidavit.
For convenience
,
I
divide the material into two
.
First,
I deal with the communication emanating from some doctors and its
relevance to the issue/s at hand. I do likewise with the
second type
of material, namely, the various publications by
SAMA.
16.
SAMATU
referred to a form signed by a Dr EK Gallant on 4 January 2021
[6]
wherein the doctor terminates his membership with SAMATU. It referred
to a similar form signed by a Dr T Qanda dated 6 February
2021
[7]
to the same effect; next,
is
a
membership subscription form dispatched by SAMA to a Dr Seroto on 8
February 2021
[8]
with an amount
of R4356. I record that there is nothing of significance recorded in
the form. There are two further emails dated
1 March 2021 from
a
Dr
Govender
[9]
and Dr Zaitoon
Petersen
[10]
. Dr Govender
states in her email that SAMA deducted an amount from her bank
account and that she had not
'committed
to
continuing her membership with them'. Dr Zaitoon writes that she 'was
under the impression that she is a SAMATU member since
they have been
deducting via Persal. This is the first time SAMA has deducted
in
months.'
She adds she would like to maintain her membership with SAMATU and
not SAMA. There is a final email dated 8 May 2020 from
a Dr
Mahlaela
[11]
who deposed to a
statement under oath
that
she was called by a lady (unnamed) from SAMA who persuaded her to
join SAMA and terminate her membership with
SAMATU.
17.
The statements by Dr's Govender and
Petersen have no relevance to the issues at hand, both from the
perspective of their content
and dates, nor does
the
communication from Dr Mahlaela. The
problem with SAMATU's justification of
its
conduct, with reference to this communication, is that the notice of
9 February refers to SAMA's renewal notice
.
Take for example the forms signed by Drs
Gallant
and
Qanda on 4 January and 8 February 2021.
In the absence of evidence to
the
contrary, it must be accepted that these doctors exercised their
prerogative to terminate their membership with SAMATU. Similarly,
nowhere is there any hint of coercive conduct on the part of SAMA
that can be gathered from the subscription form sent to Dr Seroto.
What is plain from the material canvassed in this paragraph
is
that it stands as no justification for SAMATU's conduct as evidenced
in the notice
.
18.
SAMATU further referred the court to
extensive publications issued by SAMA. It states that its issuing of
the notice must be seen
as a response to curbing its loss of
membership at the hands of SAMA's unlawful conduct as evidenced in
the
publications. The publications are undated but they all appear to
relate to events of April, May or June 2020. It is not clear
how
these publications assist SAMATU's case in so far its publication of
the notice complained of in February 2021. SAMATU
also
fails to explain why it did not take steps then to address what it
now contends to be unlawful interference on the part of SAMA,
causing
it loss. I look at a few examples of the publications:
'The
administration order' (No date provided)
The
court order imposing the current administration process over the
union has a harsh financial and organisational impact on SAMA's
strategy with respect to serving state-employed doctors
.
Their membership fees get directly
deducted as union subscription fees from their salaries on the PERSAL
system. We wish to enable
uninterrupted membership of our colleagues
with
SAMA
,
as much as we have ensured the
continuity of services throughout all the phases of these challenges.
It has therefore become imperative
that we embark on the process of
migrating subscription membership payment from the Persal system to
debit order. This disruption
has been long coming, but all
attempts to stem it have failed
.
In
light of the above, if you are a
state
doctor contributing through the Persal
deduction system
,
you
are requested to partake in
the
process
of migration by completing the attached debit order form authorising
payment through debit order
.
Kindly
find attached to this communication the debit order forms for your
completion or click here to submit.
'
19.
Further communication issued by SAMA
reads
:
'
In
a seperate ‘In a separate matter before the Labour Court Judge
handed down judgement on Monday against
SAMA.
This judgment would effectively
divide the Association in two
.
Those
members who have elected to pay subscription fees via Persal were
deemed to be members of the trade union by the court
.
Worryingly
,
because the court equated Persal payment
with
union
membership,
the judge declared that the entire amount deducted via Persal be paid
into
the
administrator
'
s
account. Thus, members who have signed up to SAMA will now see
their
membership fees go to another
organisation merely because of the chosen payment method
.
SAMA continues to hold the view that all
members signed up
to
SAMA
and that a div
i
ded
membership would be in nobody
'
s
interest. The dispute over payment method lies at the heart of the
dispute between SAMA and the Administrator and once again emphasizes
the importance of members migrating from Persal to debit order
payment, thereby ensuring that the choice
to
belong to SAMA, united for health of the
nation, remains yours. While SAMA respects the court
'
s
ruling, it will be appealing the judgment in a higher court
'
19.
lt
is SAMA's case - and SAMATU has not disputed this - that
SAMA was founded in 1927, long before there was a SAMATU
[12]
.
Thus, of the 16 000 doctors that both parties agree to be members of
SAMA, it makes sense that, for those state employed doctors
where
SAMA relied on the Persal deductions to account for membership of
both the trade union and its own membership, it must inform
its own
members
that
membership
of SAMA must now be paid directly to it by means of debit order. I am
of the view that the publications cited in paragraphs
17 and 18
amount to no more
than
regular
communication wherein SAMA provides
its
members
with the latest developments involving the litigation between itself
and SAMATU and pleads for its members' support. Besides,
the issue
before this court concerns SAMATU's notice, viewed against SAMA's
renewal notice, which, as I have already found with
respect to the
latter, contains nothing amounting to the conduct described in
SAMATU's notice. SAMATU's referral to past publications
by SAMA does
not advance
the
issues.
I conclude that the notice must be read for what it is, falsehood
published by SAMATU, and harmful to SAMA's goodwill and
reputation,
designed to prop up SAMATU at the expense of SAMA.
Whether
SAMATU published the notice knowing that it is false
20.
ln its founding affidavit, SAMA referred
to two letters dated 16 and 18 February 2021. In the letter of 16
February, upon learning
of the notice issued on 9 February, it
drew
to SAMATU's attention to the following: The
notice:
"is
without doubt streamlined to cause our
client
'
s
business, being a non-profit organisation, irreparable economic harm.
Your clients simply cannot interfere with our client's contractual
relations
.
As
it further appears from Annexure
"A'
hereto [referring to the notice], the
publication under reply is a malicious attempt to defame our client,
in
that
SAMATU published and therefore championed abusive
,
slanderous and insulting statements at
the expense of our client....Your clients are knowingly selling
and
endorsing a false narrative... This
conduct amounts to (1) defamation, (2) unlawful competition and /or
infringement of our client's
legitima
te
business operations.'
21.
ln response to this letter, SAMATU
refused to provide the undertaking and merely confirmed that the
statements in the notice are
accurate and evidence to that effect
would be produced in court
.
The
undertaking was not provided
,
even
after the follow up letter. There can be no doubt that the
publication of the notice was no error but an intentional act
,
with SAMATU knowing full well that the
statements therein, as demonstrated in this judgement, are
false.
The
loss
22.
SAMA pointed to the tarnishing of its
name and the infringement of its good will
and
reputation, which was not denied by the respondents bar the
unsubstantiated claims that with the notice, SAMATU was responding
to
SAMA
'
s
unlawful conduct of interfering with SAMATU
'
s
contractual relationships. They referred this court to
what
one may term
'negative
advertisement
'.
In this regard
,
SAMA is alleged to have
sent
notices to SAMATU's members stating that if they do not take active
steps,
their 'debit
orders'
will continue as before. In this regard, SAMATU stated that
those
members had never authorised debit
orders in favour of SAMATU. SAMA
T
U,
however, did not provide evidence of this allegation. Nevertheless
,
if SAMATU was aggrieved by SAMA
'
s
conduct in this regard, it was always able to approach
t
he
courts or the regulatory bodies that are charged with bringing into
line organisations whose conduct offends the Consumer Protection
Act.
As demonstrated in
t
his
judgment, SAMATU failed to provide evidence to support its claims
.
There can be no doubt that SAMA has
suffered harm to its name as a result of the disparaging and false
statements. For as long as
the statements remain in the public space
the h
a
rm
endures. It was further not disputed that in addition to the harm to
its name
,
SA
M
A
stands to suffer financial prejudice as a result of SAMATU
'
s
conduct of encourag
i
ng
SAMA members not to renew their membership
.
23.
lt is not far-fetched to accept that,
upon reading SAMATU
'
s
notice, doctors who
m
ay
not be clear about the payment method of their subscriptions since
the decision of the Labour Court
-
regarding ownership of the monies
collected through Persa
l -
may
not renew their subscriptions, even though they regard themselves as
mem
b
ers of
SAMA and
,
for
various professional reasons, wish to remain so. No doub
t
t
he larger the numbers of those doctors,
the more magnified the harm to SAMA
w
ho
must actively send those renewal subscription forms annually to keep
SAMA resourced
Whether
the unlawful conduct of SAMATU is the cause of the loss
24.
lt must be apparent from the reasoning
in this judgement that SAMATU's conduct was calculated to cause harm
to SAMA. There is thus
no doubt that the resultant harm to SAMA's
name is as a direct result of their conduct.
25.
As to the requirements for a final
interdict, SAMA has a right recognised in law to conduct their
business without unlawful interference.
The harm complained of has
not been denied by the respondents. Based on the respondents
'
refusal to provide SAMA with an
undertaking despite repeated requests, SAMA had no adequate
alternative remedy.
Conclusion
26.
It is for the reasons set out in this
judgment that I granted the order to SAMA.
Order
27.
The following order is
made
:
1.
This application is deemed to be an
urgent application and the non-compliance with the Rules of Court
pertaining to time periods,
forms and service is condoned.
2.
The First and Second Respondents, and
any other member of the First Respondent with its authority or
otherwise
,
are
interdicted and restrained
from
:
2.1
unlawfully or otherwise interfering with
the Applicant's business by distributing any communication about the
Applicant and its
business, either orally or in writing
,
addressed to the general public, the Applicant's members, including
the members of the First Respondent
,
or
the media or any government department and/or government official or
otherwise;
2.2
interfering with the rights of the
Applicant;
2.3
unlawfully competing with the Applicant;
and
2.4
taking any steps whatsoever to encourage
members of the Applicant to cancel their existing membership with the
Applicant or not
to renew their
membership.
3.
The First and Second Respondents,
jointly and severally, the one paying the other to be absolved, be
ordered to pay the costs of
this application, including the costs
consequent upon the employment of two
counsel.
NN
BAM
ACTING
JUDGE OF THE HIGH COURT,
PRETORIA
APPEARANCES:
APPLICANTS'
COUNSEL:
Adv
Kruger SC with Adv STORM
Instructed
by:
Welman & Bloem Inc,
Garsfontein, Pretoria
RESPONDENTS'
COUNSEL
: Adv
Fourie SC with Adv Groenewald
Instructed
by:
Serfontein
Viljoe & Swart Attorneys
,
Brooklyn, Pretoria
[1]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
(11/33767)
[2011] ZAGPJHC 196 (23 September 2011) at paragraph
6
[2]
Nativa (Pty) Limited v Austell Laboratories (Pty) Limited (1298
/2018) [2020) ZASCA 11 (19 March 2020),
paragraph
[3]
Marion
Smith v Mountain Oaks Winery (Pty) Ltd
&
another
(1171/18)
[2019) ZASCA 123 (26 September (2019), at paragraph 13
[4]
[2016]
ZACC 42
at paragraph 8
[5]
FA
8 Caselines pages
106-109
[6]
Caselines
004-172
[7]
Caselines
004-173
[8]
Caselines
004-152
[9]
004-151
[10]
004-153
[11]
004-178
[12]
(birthed
in
2002 in the name of its predecessor)