S v Kamutushi (1) (CC 8 of 2012) [2013] NAHCNLD 39 (5 July 2013)





Case no: CC 08/2012

In the matter between:




Neutral citation: The State v Kamutushi (CC 08/2012) [2012] NAHCNLD 39 (05 July 2013)


Heard: 26-27; 29 November; 05-07 December 2012; 01-02 July 2013.

Delivered: 05 July 2013.

Flynote: Criminal Procedure – Murder – Accused allegedly murdered her newborn child – Accused pleaded not guilty and disputes having killed her child – Post mortem examination report – Cause of death asphyxia – Inference drawn from medical evidence – Deceased child was suffocated – Accused only person with deceased prior to his death – Accused having acted with direct intent, alternatively, acted with intent in the form of dolus eventualis when abandoning newborn child who subsequently died.

Criminal Procedure – Concealment of birth – Accused pleaded not guilty – In defence accused admits having buried newborn child – Accused disputes having acted with intent to conceal birth – Accused secretly gave birth – Accused abandoned child shortly after birth – Child later found alive by passersby – Crime of concealment of birth only applicable if child is already dead – Accused later returned to where child was found – Child last seen alive whilst with accused – Later discovered that accused buried her child after it died – Court found by burying the deceased the accused acted with intent to conceal birth.

Summary: The accused pleaded not guilty to charges of murder and concealment of birth. Accused after giving birth in secrecy abandoned her newborn child and returned home. When the child was found alive by passersby they approached the homestead of accused’s parents which was nearby. Accused returned to the scene where child was found and admitted that it was her child. She promised to keep the child and those who had found it then left. According to the accused the child shortly thereafter died in her arms. During a follow-up visit shortly thereafter it was discovered that the child had been buried without reporting its death to anyone. Court rejected the accused’s evidence and convicted on both counts.


Count 1: Guilty of Murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003.

Count 2: Guilty of Concealment of birth in contravention of s 7 (1) of Ordinance 13 of 1962.




[1] The accused, a 28 year old female, appears on charges of (1) murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003; and (2) concealment of birth in contravention of s 7(1) of Ordinance 13 of 1962.

[2] She pleaded not guilty to both counts and in a written plea explanation prepared by Mr Muharukua, the accused’s legal representative, the accused explained that (after she had given birth to a baby boy) she wrapped him in some cloth and placed him in the shade of a tree in the hope that someone passing by would find and take care of the child. Though not forming part of the plea explanation (which is rather scanty), it is common cause that she later, in the company of boys who had found the child, returned to the scene and picked up the baby which was still alive. The plea explanation further reads that her child subsequently died in her arms, though disputing that she had caused its death. Regarding the second count, she admits having buried the child after it had died, but denies that this was done in order to conceal the birth as, by then, it had already become known that she had given birth.

[3] The facts which are common cause are: On the 1st of December 2011 at Ohaushombo village, in the district of Oshakati, the accused gave birth to a living child. She thereafter wrapped it in a bed sheet and lay it down under a tree, some 80 metres away from her parents’ homestead where she had been staying since her return about one week earlier. After a report was made at home by some boys about a crying baby found under a tree, the accused accompanied them to the place where she picked up the child. It is not in dispute that the accused at the time admitted to the boys that it was her child; that she had left it there because it was ugly; and upon which they told her to take care of the child or else they would involve the police. After the finding of the baby was reported to a teacher, the accused was again approached and asked the whereabouts of the child she had earlier given birth to. This was the first report made at her parents’ home about accused having given birth to a child. Although at first reluctant to respond to questions on the whereabouts of the child, she took them to the same tree where she unearthed the deceased’s body.

[4] Tobias Aipumbu (Tobias) testified that he and two of his friends were walking between the villages when he suddenly heard the cries of a baby coming from under a tree. They went a bit closer and realised that it was a baby completely wrapped in a cloth (bed sheet). They did not go right up to where the baby was lying and instead went to a nearby house where they reported their find to the accused and her mother. The accused accompanied them and picked up the child. She took the child from the bed sheet in which it was wrapped and said it was her child but that she did not want him ‘as he was ugly’. When they threatened to inform the police about the incident, she discouraged them by saying that she will take care of the baby. They then departed with the intention of informing a teacher from a nearby school about the incident. Whilst on the way they met with this person and made a report to him about the baby they had found. Tobias and the boys in his company returned with the teacher to the place where they had earlier found the baby, but this time there was no sign of either the accused or the baby. This prompted them to go to the accused’s parents’ home where enquiries were made as to the whereabouts of the child, as it was not with the accused upon their arrival. After some prodding the accused said she had left the baby at the tree and they returned there together whereafter she unearthed the body she had earlier buried behind the tree. Tobias and his friends then left the scene.

[5] The evidence of Malakia Titus (Titus) in all material respects corroborates that of Tobias, though in cross-examination reference was made to certain discrepancies in their respective versions regarding a time difference of one hour as to the first time they arrived at the tree where the baby was found; and their respective positions when looking on as the accused picked up the baby and unwrapped the bed sheet. It must be said that the witnesses only gave estimations of time periods and did not testify about exact or specific time frames. Of note is that both of them were in a position to make proper observations on the accused and the baby, which evidence the accused corroborates. Both witnesses testified about dry leaves that were heaped on top of the baby; something the accused also confirms. However, she was unable to give any explanation for the leaves found on top of the baby and said she did not know what she was doing at the time. I shall revert to this aspect of her evidence later.

[6] Mr Tilanus Haitula confirmed that he was driving home from school when he was stopped by four boys who made a report to him about a newborn baby they had found under a tree. He decided to fetch the child in order to take it to the hospital. When they reached the spot pointed out to him, the baby was no longer there and he decided to approach the homestead of the accused’s parents, being his neighbours, to enquire about the baby. Accused in his presence admitted having given birth to the child but said it subsequently died. When asked where the body was, she at first kept quiet. When pressed for an answer by Mr Haitula the accused led them to a spot under the same tree where she started looking around. When Mr Haitula again asked the whereabouts of the child she went behind the tree and unearthed the body from a shallow grave. The accused did not give an explanation why she had buried the body. The evidence of this witness was left unchallenged.

[7] Mr Teofilus Kamutushi is currently 78 years old and is the father of the accused. He confirmed having been at home when young boys arrived, but was unaware as to what brought them there. When he later asked the accused about the purpose of their visit she replied that they were asking directions to the cuca shops. It seems that he later decided to go after these boys at the cuca shops but on the way, was met by Mr Haitula and the boys. He accompanied them to the tree where the baby had earlier been found. According to him the accused was then called and she dug out the body. As he had not known about the accused’s pregnancy, he, understandably, was surprised and shocked to hear about the accused having given birth and the child’s subsequent demise.

[8] The testimony of this witness differs from that of the other witnesses regarding the sequence of events leading up to the discovery of the body. It seems to me that this was mainly brought about by him (Mr Kamutushi) not having been present when Mr Haitula and the others came to his house as they had only met on the way. Be that as it may, I consider the discrepancies in the evidence of the State witnesses to be immaterial to the determination of the accused’s guilty in respect of both charges. Mr Haitula’s evidence about the events taking place in his presence was not challenged by the accused. I therefore accept the evidence of Mr Haitula to be correct.

[9] During cross-examination Mr Kamutushi was specifically questioned about his relationship with the accused and the manner in which he had treated her in the past. He disputed defence counsel’s assertion that he had become very angry with the complainant when he heard about the death of the baby. He further denied having spoken to the accused on that day about what she had done; also that he in the past endlessly scolded the accused or shouted at her, causing her to become afraid of him. To these allegations he replied that it would have been difficult for him to have done so because the accused had only returned home one week prior to the child’s birth; neither did he know that she was pregnant, thus, he said, there was no reason for him to become angry. Mr Muharukua, notwithstanding, persisted in saying the witness would usually have fits of rage when the accused did something wrong at home; to which the reply came that the accused was not a child, but an adult, and there was need for such conduct on his part. It further emerged that the accused already has one girl about three years of age who had been living with the accused’s parents since shortly after her birth. Mr Kamutushi explained that the accused would usually live in with him and his wife, but occasionally left home in search of employment. On the last occasion she had been away from home for about one year and upon her return, did not give any specific reason why she returned home. According to him the accused’s firstborn had been staying with them at all times during her absence and because in his view there was nothing strange about it, there would have been no reason for him to rebuke her because of her having a second child.

[10] Hendrina Shivolo is the accused’s biological mother and her evidence confirms the arrival of some boys at their home that morning and the accused having accompanied them. After Mr Haitula informed her what had happened with the accused, she followed them to the place where the accused had buried the baby. She remained standing at a distance and although she first stated that she was able to see that the body had been buried head first, she conceded under cross-examination that she did not have a clear view from her vantage point. As regards the alleged scolding of the accused by her husband, she said she was unaware of this ever happening in her presence and that it was her first time to hear about it.

[11] Dr Batista Santos is a forensic pathologist who performed a post-mortem examination on the body of the deceased and recorded her findings in a report, handed into evidence (Exhibit ‘E’). Dr Santos testified that from tests done on the lungs and the stomach she was able to conclude that the baby was alive at birth and had no congenital malfunction. The height (length) was 40cm while the mass was 2.5kg. Nothing remarkable was otherwise noted. Though she concluded that the baby had died of asphyxia she was unable to say what might have caused this. Dr Santos was at pains when explaining that she was not familiar with the circumstances prevailing at the time of the baby’s death and that there were no signs present of ‘mechanical asphyxia’ by which is meant that there were no signs of trauma observed on the body. She elaborated on different scenarios which could possibly lead to asphyxia of a new-born baby, but from what I could understand, this mostly applied to either the medical condition of the mother or the child at birth. It is evident that no abnormalities in respect of the deceased were detected during the post-mortem examination. Even after the circumstances of this case had been explained to Dr Santos, she was unable to narrow down any possibilities which, in the present circumstances, might have caused the baby to have died of asphyxia.

[12] Defence counsel strenuously submitted that the pathologist’s evidence must be understood to mean that, in the absence of signs of trauma to the body, there was no external force applied that could have caused the baby’s death. The submission is based on the doctor’s evidence of the absence of, what she described, ‘mechanical asphyxia’. I find myself unable to agree with counsel’s submission because the absence of trauma to the body does not necessarily mean that there was no physical blockage of the airway causing a lack of oxygen resulting in asphyxia. In the present circumstances the baby’s airway could easily have been blocked off by simply covering the face with the hand, without leaving any sign of external force to the body. The pathologist’s evidence clearly rules out the possibility that the baby had died of natural causes and Mr Muharukua’s proposition suggesting otherwise, in my view, is not supported by the evidence. This is not an instance where the cause of death was unknown. In this case the deceased died of suffocation (asphyxia) which could only have been brought about by the physical blockage of the airway. It remains to be decided who brought about the deceased’s death and not necessarily how this came about.

[13] The accused testified in her defence and said she was working at another village, away from home, when she fell pregnant. It is not clear from the accused’s evidence what the attitude of the father of the child was when she fell pregnant, but when she afterwards contacted him to inform him about the death of their child, he simply denied any responsibility towards her in view of the child having passed away.

[14] The accused described a situation where she largely blames her father for having created an unbearable situation at home and where it became impossible for her to keep her newborn child. She said he would always be yelling at her and scolded her whenever she did something wrong; even calling her ‘a bitch’. She said it was because of this behaviour that she had left her parents’ home and took up employment elsewhere. This notwithstanding, she returned to her parents’ home about one week before she delivered and said it was on her employer’s advice that she returned home. She did not tell anyone at home – except (according to her) her younger sibling – that she was pregnant. When it was time for her to deliver she took a bed sheet and walked into the veldt where she gave birth to a baby boy under a tree. She realised that in the circumstances she could not take the baby home and then decided to wrap it in the bed sheet and lay it down under the tree; hoping that a passerby would find it. According to her she left the face of the baby uncovered, which evidence is contradicted by that of the witnesses Tobias and Titus.

[15] She then went home and did not return to the baby until the boys arrived and reported about the baby they had found. She in material respects confirmed the evidence of these two witnesses; also that she had told them that it was her baby but that she did not want it because it was ugly. She however explained that the only reason why she said this was because they were young and she did not want to explain to them the situation between her and her boyfriend, the latter having told her that he was not accepting responsibility for the child and did not want it. This explanation contradicts the accused’s evidence about her only having called the child’s father after the baby had died, and not before when it was still alive when found by the boys. When they threatened to call the police, she reassured them that she would take the baby with her whereafter they left. She said she remained at the tree not knowing what to do and whilst still holding the baby in her arms, he died. She buried him in a ditch under the tree and covered the body with sand and leaves. She went home without informing anyone about what had happened until Mr Haitula arrived and made enquiries about the baby.

[16] She confirmed at first having kept quiet when questioned and only when Mr Haitula insisted on an explanation as to what she had done with the baby, did she take him and the others to the tree where she had buried it. She unearthed the body with her hands and lay it down on the ground. The police were then notified.

[17] Although the accused at first admitted that a warning statement (Pol 17) was obtained from her and agreed to its handing in into evidence (Exhibit ‘D’), the content of the statement however, was placed in dispute. During her evidence in chief she gave conflicting accounts as to whether or not she had told the police officer who reduced the statement to writing, anything at all. This notwithstanding, she was adamant that she did not say the baby had already died when she returned to the scene (with the boys), and that the statement, on that score, is wrong. She further contradicted herself under cross-examination by confirming the warning statement to be a true reflection of what she had narrated to Constable Haitula. In the end it appears to me that the accused only disputed the statement as far as it reflects that the baby had already died when they returned to the tree on the first occasion. Not much turns on this because the evidence proves that the baby by then was still alive.

[18] When put to the accused in cross-examination that she did not want the child and was merely blaming her father for her abandoning her newborn child so that it could die, she said that she wanted the baby but had left it under the tree because she was afraid of telling her parents that she was pregnant. She denied – as counsel contended on her behalf – that she had placed the child there hoping, or with the expectation, that someone will find it. According to her, the main reason for abandoning the child was because she feared her father; also that she had an expectation that someone might find the child where she had left it. On a question whether she reasonably foresaw that her child could die, she said she did not really think so as it was still early and that someone could pass by and find it. However, from her evidence it is clear that she foresaw the possibility that the child might not be found by someone, although hoping that it would happen. She also realised that she had given birth on her own and that the child might be ‘tired’ (weak) – factors which obviously adversely would have impacted on its chances of surviving.

[19] The afore-mentioned explanations, when considered together with the rest of the evidence, tend to show that the accused acted with a clear mind when deciding to leave her newborn child under the tree.

[20] However, when asked about the leaves that were found heaped onto the body when still wrapped in the bed sheet, she replied that she had to be honest, and admitted having put it there herself; but that she did not know what she was doing and that her mind ‘was not in its full place’. She further added that she acted as if she was under some sort of curse.

[21] This evidence prompted the court at the end of her testimony to enquire from the accused, as well as her counsel, whether there was any history of the accused suffering from any mental illness. Although the accused denied suffering from such condition, Mr Muharukua informed the court that he, during earlier consultation with the accused, realised that she was unable to remember certain things that had happened in the past, and was of the opinion that she was probably suffering from some mental disorder. The court expressed its surprise and dissatisfaction for counsel to have only disclosed this important information at such late stage of the trial and not sooner, as it should have been brought to the court’s attention even before the commencement of proceedings. This notwithstanding, and due regard being had to the accused’s testimony about her not knowing what she was doing, as well as the seriousness of the charges preferred against the accused, the court decided to have the accused examined in terms of sections 77 and 78 of Act 51 of 1977 and the appropriate order in that respect was made. This sudden turn of events resulted in the suspension of trial proceedings pending the filing of the psychiatrist’s report prepared in terms of s 79.

[22] When the trial continued more than six months later the report, prepared by Dr Mthoko from the Psychiatric Department of the Windhoek Central Hospital, was handed into evidence by agreement and without any witnesses being called (Exhibit ‘F’). The content of the report was not challenged by either party and the accused was also satisfied that the content of the report was correct. The report, as regards the accused’s memory, reflects that her immediate, recent and remote memory was not impaired. She was diagnosed to be not mentally ill and at the time of commission of the alleged crimes, she was not suffering from a mental illness; therefore she was able to appreciate the wrongfulness of the alleged crimes and able to act in accordance with such appreciation.

[23] In view of the above findings regarding the accused’s mental state at the time of committing of the alleged crimes, I am satisfied that it puts to rest any doubt that was created during the accused’s testimony and defence counsel’s assertion that the accused was not mentally fit. Whereas the report shows that the accused appreciated the wrongfulness of her conduct and her not disputing this finding, it means that her earlier evidence about her not knowing what she was doing when heaping dry leaves onto the baby the first time, cannot be true and stands to be rejected as false. It appears to me to be nothing more than an afterthought in an attempt to blame her conduct on external factors allegedly playing in on her state of mind at the time. It also seems to fit in with her shifting of the blame to her father as justification for her decision to rather abandon her newborn child, and not to bring it home.

[24] I have given due consideration to the accused’s reasons advanced for having abandoned her baby and have, for reasons to follow, come to the conclusion that her evidence about her father’s alleged rage fits, is simply not true. Firstly, as her father testified, accused is an adult person and not a child and he had no reason to treat her as she alleges. It is common cause that her father was unaware of her pregnancy, so he would have had no reason to be annoyed or angry with her before she gave birth. Secondly, the accused’s firstborn had been staying with her parents since birth which did not seem to trouble Mr Kamutushi at all, as he considered it to be normal. Furthermore, had the accused’s father been the terrible person she made him out to be, then I find it surprising that her mother is unaware of his unacceptable conduct and rage fits; but, more importantly, that the accused against this backdrop chose to return to her parents’ home to deliver, well knowing what her father was emotionally doing to her and that she dare not inform her parents about her pregnancy. On her own evidence there was no reason why she went there – except for her employer advising her to return home to deliver – and why she did not stay where she was for then she could have kept the baby as she intended doing without her father’s interference. Her explanation in this regard is not only implausible, but clearly false beyond reasonable doubt, and falls to be rejected.

[25] In my view the accused was unable to satisfactorily explain why she decided to give birth in secrecy and thereafter left her newborn child on its own. The only reasonable inference to draw from these facts is that she had no intention of keeping the baby and wanted to get rid of it without leaving traces and without anyone knowing. Her plan was frustrated by the boys who by chance found the baby and had this not been the case, her misdeeds, in all probability, would never have been detected and she being exposed.

[26] I now turn to consider the accused’s culpability. Mr Lisulo submitted that the medical evidence proved that the now deceased child was born alive and died of asphyxia which was brought about by accused burying it alive. This, he argued, shows that she had acted with direct intent. Alternatively, that the accused, when abandoning her newborn child, foresaw the possibility that death could ensue and associated herself with such possibility.

[27] Much was made by defence counsel about the footpath being in close proximity of the tree under which the accused gave birth and left her newborn child. Though the exact distance between the footpath and the tree is not known, and Tobias having described the distance as ‘being close’, it cannot in my view be inferred from the evidence that the baby was visible from the footpath. The evidence is that the boys, when passing the place where the baby was left under the tree, simply did not see it but only heard him crying, prompting them to move up to the fence between them and the tree where the baby was. Defence counsel’s submission, that the child was so placed that it simply had to be noticed, or could not be missed by passersby, is thus not supported by the evidence. What has been duly proved is that the accused had no intention of letting anyone know about either her giving birth or to have the whereabouts of the child made known to anyone. This much the accused confirmed when asked about the baby and her keeping quiet about its whereabouts. Her evidence about her hoping that the baby would be found by someone has the making of an afterthought and falls to be rejected.

[28] The court has already come to the conclusion that the deceased’s death was brought about due to the physical blockage of the airway which clearly required some physical act to achieve the result. The evidence in my view established that the accused not only intended giving birth in secrecy, but also that she had done nothing to secure its well-being because she did not want the baby. The evidence of Tobias and Titus about the baby having been completely wrapped in a bed sheet contradicts that of the accused who claims to have left the baby’s face open. However, this aspect of her evidence is contradicted by evidence that the child was not only completely wrapped in the bed sheet, but was found under a heap of dry leaves – a fact the accused admits, but which she was unable to explain. This in my view stands in sharp contrast with someone who had placed the baby there in the hope of it being found by a passerby. On the contrary, it rather tends to show that the child was covered and dry leaves heaped on top of it in order to hide its presence. Tobias testified that the bed sheet was only partly visible and that the accused first had to remove the leaves before picking up the baby.

[29] When looking at the accused’s actions and utterances prior to the death of the child as aforementioned, and the accused having been the only person with the deceased at all relevant times, whilst still alive, it seems to me inescapable to conclude from these facts that the accused brought about the death of her own child by suffocating him in a manner unknown to the court. I accordingly reject her evidence about the child having died in her arms without her bringing about its death.

[30] The evidence presented proves beyond reasonable doubt that the accused intended to bring an end to her child’s life and that she had acted with direct intent to achieve this result.

[31] If my reasoning is wrong when coming to this conclusion – which I do not concede – I am, notwithstanding, satisfied that the accused at least foresaw that death may ensue when completely wrapping the newborn baby in a bed sheet and hiding it out of sight of others by heaping dry leaves onto it. Being a mother herself she must have realised that a newly born child simply cannot survive on its own and, besides medical attention, would at least require some form of nurturing and protection against nature’s elements and other possible harmful elements the child is exposed to, such as roaming dogs and other wild animals. Accused’s conduct by simply walking away from her child, leaving it at its own mercy and without having any intention of later returning, clearly demonstrates that she already at that stage reconciled herself with the possibility of the baby’s ensuing death. Everything she did after the child’s birth points at her wanting to bring an end to its life. That would clearly constitute intent in the form of dolus eventualis. Such conduct constitutes murder having acted with intent.

[32] The crime of concealment of birth is enacted by s 7 (1) and (2) of Ordinance 13 of 1962. Subsection (1) provides that any person who disposes of the dead body of any child with intent to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence and liable to a fine not exceeding two hundred [N$] or to imprisonment for a period not exceeding three years. Subsection (2) creates a presumption which provides that a person who disposes of the dead body of any such child shall be deemed to have disposed of such body with intent to conceal the fact of the child’s birth, unless it is proved that such person (the accused) had no such intent.

[33] The crime itself is not against the taking of a life because it only becomes applicable where the child is already dead and not whilst still alive.1 In the latter instance the perpetrator is guilty under common-law of the offence of ‘exposing an infant’.2 In the present circumstances the accused, in view of what has been said above, could only be charged with the offence of concealment of birth once the child has died, and not sooner on her own evidence for having abandoned the child whilst still being alive - despite her intention not to report the birth of her child and to keep it a secret.

[34] The evidence adduced in proving the murder charge in the present case essentially also proved the commission of the offence of concealment of birth set out in count 2. The accused admitted that before returning to her parents’ homestead, she buried the child after she realised that it was no longer alive. She made no report to anyone about her having given birth or the passing of the baby shortly thereafter, except when later confronted by the boys who discovered the baby under a tree. Defence counsel contended that the crime of concealment of birth could no longer be committed once she had admitted to the boys that she had given birth to the baby they had found. In my view, the admission made by the accused at that stage does not excuse her actions when she subsequently buried the baby after its passing. As earlier mentioned, she could only have committed the crime once the child had died. Although true that the boys had known about the child’s birth, she had no way of knowing that they would return with Mr Haitula and must have been under the impression that the birth remained a secret once she told them that she would be keeping the child whereupon they left. The accused, on her own evidence, disposed of the body by burying it in a shallow grave (ditch) with intent to conceal the fact of its birth and by so doing, made herself guilty of the offence charged. The evidence clearly established that the accused acted with intent to conceal the baby’s birth (and death).

[35] In view of the court’s findings about the accused’s intentions being duly established, the provisions of subsection (2) need not be relied upon and decided.

[36] In the result, the court’s verdict is the following:

Count 1: Guilty of Murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003.

Count 2: Guilty of Concealment of birth in contravention of s 7 (1) of Ordinance 13 of 1962.





STATE D Lisulo

Of the Office of the Prosecutor-General, Oshakati.

ACCUSED V Muhurukua

Instructed by Dr Weder, Kauta & Hoveka, Oshakati.

1See S v Oliphant, 1950 (1) SA 48 (O) at 51; S v Maleka, 1965 (2) SA 774 (T).

2Snyman Criminal Law (5th Ed) at 440.

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1. Criminal Procedure Act, 1977 1918 citations
2. Combating of Domestic Violence Act, 2003 379 citations

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