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[2018] ZASCA 66
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Commissioner of the South African Revenue Services v Daikin Air Conditioning South Africa (Pty) Limited (185/2017) [2018] ZASCA 66; 80 SATC 330 (25 May 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 185/2017
In
the matter between:
THE
COMMISSIONER FOR THE SOUTH
AFRICAN
REVENUE
SERVICES
APPELLANT
and
DAIKIN
AIR CONDITIONING SOUTH
AFRICA
(PTY)
LIMITED
RESPONDENT
Neutral
citation:
CSARS
v Daikin Air Conditioning
(185/2017)
[2018] ZASCA 66
(25 May 2018)
Coram:
Maya
P and Majiedt, Mbha and Van der Merwe JJA and Davis AJA
Heard:
9
March 2018
Delivered:
25
May 2018
Summary:
Customs
and Excise Act 91 of 1964 – classification of articles for
customs duty – correct tariff to be applied in respect
of
‘window or wall types, self-contained or “split-system”’
air conditioning machines and parts thereof.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Makhubele AJ sitting as court of first instance):
1 The appeal succeeds
with costs, such costs to include the costs of two counsel.
2 The order of the court
a quo is set aside and replaced with the following order:
‘
The application is
dismissed with costs, such costs to include the costs of two
counsel.’
JUDGMENT
Van
der Merwe JA (
Maya
P and Mbha JA
concurring)
[1]
The respondent, Daikin Air Conditioning South Africa (Pty) Limited
(Daikin), imports and distributes air conditioning machines
and parts
thereof. Section 47(1) of the Customs and Excise Act 91 of 1964 (the
Act) provides that customs duty shall be paid on
imported goods in
accordance with Schedule 1 to the Act. The appeal concerns the
classification for customs duty purposes of parts
of air conditioning
machines (the products). In terms of s 47(9)
(e)
of the Act, Daikin appealed to the Gauteng Division, Pretoria against
the classification made by the appellant, the Commissioner
for the
South African Revenue Services (the Commissioner), in respect of the
products. The court a quo (Makhubele AJ) upheld the
appeal but
granted leave to the Commissioner to appeal to this court.
[2]
Schedule 1 to the Act commences with general rules for its
interpretation. In Part 1 of Schedule 1 goods
are classified for purposes of ordinary customs duty. Goods are
systematically grouped in sections, each containing a number of
chapters. Each section and each chapter is headed by notes containing
rules for interpreting their provisions. The chapters contain
the
tariff headings and under them, subheadings. The subheading under
which the goods are classified determines the duty payable,
if any.
The general rules for the interpretation of Schedule 1 provide, in
essence, that for legal purposes classification shall
be determined
by the terms of the headings and any relative section and chapter
notes.
[3]
The grouping and wording of Part 1 of Schedule 1 largely emanate from
the Harmonised Commodity Description and Coding System
(the
Harmonised System) established by an international convention to
which South Africa is a signatory. The operation of the Harmonised
System falls under the purview of the World Customs Organization
(WCO) situated in Brussels, formerly known as the Customs
Co-operation
Council. From time to time the WCO issues explanatory
notes to the Harmonised System (the Brussels Notes). Section 47(8)
(a)
of the Act, inter alia, provides that the interpretation of any
tariff heading or subheading and every section note and chapter
note
in Part 1 of Schedule 1 shall be subject to the Brussels Notes issued
from time to time.
[4]
What this means, was authoritatively explained by this court in
Secretary for Customs and Excise v Thomas Barlow & Sons Ltd
1970 (2) SA 660
(A). Trollip JA said (at 676B-C):
‘
It
can be gathered from all the aforegoing that the primary task in
classifying particular goods is to ascertain the meaning of
the
relevant headings and section and chapter notes, but, in performing
that task, one should also use the Brussels Notes for guidance
especially in difficult and doubtful cases. But in using them one
must bear in mind that they are merely intended to explain or
perhaps
supplement those headings and notes and not to override or contradict
them.’
And
at 679F and 680D Miller AJA stated that the Brussels Notes generally
serve as guides and aids to the often difficult task of
classification in accordance with the terms of the headings read with
the relevant section and chapter notes.
[5]
The relevant tariff headings and subheadings are found in Chapter 84
of Section XVI of Part 1 of Schedule 1. They are the following:
Heading/
Subheading
CD
Article
Description
84.15
Air
conditioning machines, comprising a motor-driven fan and elements
for changing the temperature and humidity, including
those
machines in which the humidity cannot be separately regulated
8415.10
-
Windows or wall types, self-contained or ‘split-system’:
8415.10.10
8415.10.20
8415.10.50
8415.10.90
8415.20
6
3
5
4
3
-
Of
a kind used for buildings, compressor operated, having a rated
cooling capacity not exceeding 8,8kW
--
Of a kind used for buildings, not compressor operated, having a
rated cooling capacity not exceeding 8,8kW
--
Other, compressor operated, having a rated cooling capacity
not exceeding 8,8kW
--
Other
-
Of a kind used for persons, in motor vehicles
8415.90
-
Parts:
8415.90.05
8415.90.20
8415.90.90
6
5
--
Indoor units and outdoor units for machines of subheadings
8415.10.10
and 8415.10.20
--
Other parts identifiable for use solely or principally with
compressor
operated
machines of subheading 8415.10 having a rated cooling
capacity
not exceeding 8,8kW
--
Other
[6]
A distinction must be made between ‘split-system’ and
self-contained air conditioning machines. A ‘split-system’
air conditioning machine consists of an indoor evaporator unit and an
outdoor condenser unit. In a self-contained machine the evaporator
unit and the condenser unit are integrated in a single housing. A
self-contained air conditioning machine is typically installed
through a window of a building. The products are indoor units for
‘split-system’ air conditioning machines. The products
are specifically manufactured and structured for mounting in or under
a ceiling in a building. They are never mounted through windows
or on
walls. The outdoor units of the ‘split-system’ machines
of which the products form part, are placed or mounted
outside the
building on the floor, ground or roof.
[7]
The Commissioner contends that the products are indoor units for
machines of subheading 8415.10.10 and that they should therefore
be
classified under subheading 8415.90.05. On the other hand, Daikin’s
case is that the products are parts for ceiling type
air conditioning
machines that do not fall within the ambit of subheading 8415.10.
Thus, it contends that the products are classifiable
under subheading
8415.90.90 (‘Other’). Therefore, the question is whether
the complete machines consisting of the products
and the appropriate
outdoor units fall under tariff subheading 8415.10 or not. The answer
lies in the interpretation of the words
‘window or wall types,
self-contained or “split-system”’.
[8]
The section notes and chapter notes do not give any indication as to
the answer. I also do not think that a peering at the words
‘window
or wall types, self-contained or “split-system”’,
provides a sufficiently clear answer. Both the
terms ‘self-contained’
and ‘split-system’ may refer to what goes before them,
that is, ‘window or
wall types’. However, it is also a
reasonable interpretation of the subheading that only the term
‘self-contained’
qualifies the preceding words, ‘window
or wall types’. Therefore, the words of subheading 8415.10 may
refer only to
window or wall types of air conditioning machines,
which may be self-contained or ‘split-system’ (as Daikin
contends).
They may also mean window or wall types of air
conditioning machines that are self-contained or ‘split-system’
air
conditioning machines (as the Commissioner contends).
[9]
In the circumstances it is appropriate to consider the Brussels Notes
to subheading 8415.10. These provide as follows:
‘
Subheading
8415.10
This
subheading covers air conditioning machines of window or wall types,
self-contained or “split-system”.
The
self-contained type air conditioners are in the form of single units
encompassing all the required elements and being self-contained.
The
“split-system” type air conditioners are ductless and
utilize a separate evaporator for each area to be air conditioned
(e.g., each room).
The indoor heat exchanger unit may be mounted
in various locations, for example, in a wall or window, or on a
ceiling.
However,
this subheading
excludes
ducted central air
conditioning systems which utilize ducts to carry refrigerated air
from an evaporator to several areas to be
cooled.’
(my
emphasis)
[10]
The italicized sentence was added to the Brussels Notes by the WCO by
way of amendment on 17 December 2012. I agree with the
Commissioner
that the amendment was intended to explain what the tariff subheading
had meant from its inception. It follows that
there is no room for
the argument that the classification of the products before this
amendment of 17 December 2012 should differ
from their classification
thereafter.
[11]
The Brussels Notes favour the interpretation of the Commissioner.
First, if the subheading was intended to refer only to window
or wall
type air conditioning machines and to no other, one would have
expected these notes to contain some limitation to and/or
description
of window or wall types. Second, the added sentence appears to me to
provide decisive guidance. It makes clear that
the subheading
includes ‘split-system’ air conditioning machines of
which the indoor units are mounted on ceilings.
[12]
There is support for this conclusion to be found in the explanatory
notes to heading 84.15, which, inter alia, provide:
‘
The
machines may be in the form of single units encompassing all the
required elements, such as self-contained window or wall types
(referred to as “through-the-wall” units). Alternatively,
they may be in the form of “split-systems” which
operate
when connected together, i.e., a condenser unit for external
installation plus an evaporator unit for internal installation.
These
“split-systems” are ductless and utilize a separate
evaporator for each area to be air conditioned (e.g., each
room).’
[13]
This note refers to window or wall types only as examples of
self-contained (single unit) air conditioning machines. It then
explains that the heading also covers an alternative to the
(self-contained) single units, namely ‘split-systems’.
The ‘split-system’ machines are therefore not required to
be window or wall types.
[14]
There is a further consideration. It is well established that a
commercially sensible construction should be preferred. In
this
regard it appears from the evidence that the machines in respect of
which the products constitute the indoor units, fall squarely
within
the meaning of subheading 8415.10.10. They are ‘Of a kind used
for buildings, compressor operated, having a rated
cooling capacity
not exceeding 8,8 kW’. It also
appears from the evidence that the same outdoor
units may be used for
these ‘split-system’ machines, irrespective of whether
the indoor units are mounted on walls
or ceilings. It appears quite
unbusinesslike to differentiate for customs duty purposes, between
‘split-system’ air
conditioning machines of which the
indoor units do exactly the same work and the outdoor units are
exactly the same, simply because
the indoor units are placed on
ceilings and not on walls.
[15]
Although the matter is by no means free of difficulty, I have come to
the conclusion that the interpretation advanced by the
Commissioner
is to be preferred. I hold that the products are classifiable
under tariff subheading 8415.90.05 of Part 1 of
Schedule 1 to the Act
and would uphold the appeal.
[16]
In the result the following order is made:
1
The appeal succeeds with costs, such costs to include the costs of
two counsel.
2
The order of the court a quo is set aside and replaced with the
following order:
‘
The
application is dismissed with costs, such costs to include the costs
of two counsel.’
_________________________
C
H G van der Merwe
Judge
of Appeal
Majiedt
JA and Davis AJA dissenting
[17]
We have had the distinct pleasure of reading the lucid judgment of
Van der Merwe JA. Regrettably, we are unable to agree with
his
conclusions and hence the order that follows therefrom.
[18]
The determination of this appeal concerns the meaning of the words
‘window or wall types, self-contained or split system’
as
employed in tariff subheading 8415.10 in Part 1 of Schedule 1 to the
Customs and Excise Act 91 of 1964 (the Act). In particular,
the
question for determination is whether they are air conditioning
machines, which are
neither
window
nor wall types which fall within this subheading, or stand to be
classified as ‘other’ in terms of subheading 8415.10.90.
[19]
Appellant contends that the parts of the air conditioning machines
that are imported and form the subject matter of this dispute
are
components of a ‘split system’. They fall to be
classified under tariff subheading 8415.10 and the parts are
classifiable
under tariff heading 8415.90.05. Respondent contends
that these parts stand to be classified under tariff subheading
8415.90.90
being ‘other’.
[20]
The nature of the relevant air conditioning machines is common cause.
In respondent’s founding affidavit the following
description of
the relevant air conditioning units appears:
‘
The
indoor units: These units are always mounted in or below a ceiling.
They are never mounted though windows or on walls. These
units are
specifically manufactured and structured for the purpose of mounting
in or under a ceiling.'
This
description is not disputed by appellant. As the tariff
determination, which is the subject of these proceedings, only
concerns
indoor units, there is no need to examine outdoor units
which are also described in the founding affidavit.
[21]
In his judgment Van der Merwe JA considers that ‘peering at the
words “window or wall types, self-contained or
split system”’
does not provide ‘a sufficiently clear answer’. For this
reason he has recourse to the Explanatory
Note to the Harmonised
Commodity Description and Coding System (the Harmonised System)
established in terms of an international
convention to which South
Africa is a signatory. The operation of the harmonised system falls
under the supervision of the World
Customs Organisation (WCO) located
in Brussels .From time to time the WCO issues explanatory notes known
as Brussels Notes.
[22]
Section 47(8)(a) of the Act provides that the interpretation of any
tariff heading or tariff sub-heading in Part 1 of Schedule
1 to the
Act shall be subject to the Explanatory Notes to the Harmonised
System issued by the WCO.
[23]
Prior to 17 December 2012, the relevant Brussels Note to subheading
8415.10 read:
‘
This
subheading covers air conditioning machines of window or wall types,
self-contained or “split-system”.
The
self-contained type air conditioners are in the form of single units
encompassing all the required elements and being self-contained.
The
“split-system” type air conditioners are ductless and
utilize a separate evaporator for each area to be air conditioned
(e.g. each room).
However,
this subheading excludes ducted central air conditioning systems
which utilize ducts to carry refrigerated air from an
evaporator to
several areas to be cooled.
Subheading
8415.20
This
subheading covers equipment which is intended mainly for passenger
motor vehicle of all kinds, but which may also be fitted
in other
kinds of motor vehicles, for air conditioning the cabs or
compartments in which persons are accommodated.
Subheading
8415.90
This
subheading includes both indoor and outdoor units for split-system
air conditioning machines of subheading 8415.10 when presented
separately. The units are designed to be connected by electrical
wiring and copper tubing through which refrigerant passes between
the
indoor and outdoor units.
’
[24]
On 17 December 2012, the WCO added the following sentence:
‘
The
indoor heat exchanger unit may be mounted in various locations, for
example, in a wall or window, or on a ceiling.’
[25]
Before dealing with the implications of the relevant note, it is
important to keep in mind the approach to the interpretation
of the
tariff headings as set out by Trollip JA in
Secretary for Custom
and Excise v Thomas Barlow & Sons Ltd
1970 (2) SA 660
(A) at
679F – 680B-C:
‘
[T]he
primary task in classifying particular goods is to ascertain the
meaning of the relevant headings and section and chapter
notes, but,
in performing that task, one should also use the [Explanatory Notes]
for guidance especially in difficult and doubtful
cases. But in using
them one must bear in mind that they are merely intended to explain
or perhaps supplement those headings and
notes and not to override or
contradict them. They are manifestly not designed for the latter
purpose, for they are not worded
with linguistic precision usually
characteristic of statutory precepts; on the contrary they consist
mainly of discursive comment
and illustrations and, in any event, it
is hardly likely that the Brussels Council intended that its
Explanatory Notes should override
or contradict its own Nomenclature.
Consequently, I think that in using the [Explanatory Notes] one must
construe them so as to
conform with and not to override or contradict
the plain meaning of the headings and notes.’
[26]
Appellant adopted the view that, even though the additional sentence
was inserted on 17 December 2012, it was only included
to bring
additional clarity but did not introduce a new meaning to the
original Note. In its view, the Note with its subsequent
clarification was dispositive of the dispute.
[27]
This submission seems to conflate the mandated inquiry. In the first
place the meaning of the header must be ascertained. Only
if this
task leads to the conclusion that a clear meaning cannot be
ascertained from an examination of the words employed should
there be
reference to the Brussels Note. That is surely self-evident from the
dictum of Trollip JA in
Thomas
Barlow
above. See also
International
Business Machines (Pty) Ltd v Commissioner of Customs and Exercise
1985 (4) SA 852
(A) at 864B and more recently
The
Heritage
Collection (Pty) Ltd v CSARS
2002 (6) SA 15
(SCA) para 10 and
CSARS
v Coltrade International CC
[2016] ZASCA 153
para 7.
[28]
In our view, the words used do admit of a clear meaning.
Significantly there is a comma inserted between ‘window or wall
types’ and ‘self-contained or split-system’. This
serves to indicate that the phrase self-contained or split-system
qualifies or describes the nature of the two types of air conditioner
set out: being window or wall types. The cogency of this
approach to
the header can be illustrated by way of the following hypothetical
example: ‘Car or SUV’s; Blue or Black’.
This phrase
cannot plausibly be interpreted, for example, to extend to trucks or
tractors.
[29]
As has been the custom recently appellant sought to invoke dicta from
the judgment in
Natal Joint
Municipal Pension Fund v
Endumeni Municipality
2012 (4) SA 593
(SCA) at para 18:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document.’
[30]
In his judgment Van der Merwe JA invokes this dictum when he
concludes that the inclusion of indoor units mounted on ceilings
leads to the more sensible commercial construction. It thus becomes
necessary to examine the dictum from
Endumeni
as it
might apply to this case.
[1]
[31]
Contrary to
Endumeni
,
above at 603 (fn14) which, on the authority of
KPMG
Accountants (SA) v Securifin Ltd
2009 (4) SA399 (SCA), suggests that there is no distinction in the
interpretation of contracts, statutes and other documents, we
can
find nothing in the judgment of Harms DP in
KPMG
that prevents a drawing of the distinction that we have drawn between
the interpretation of legislation and contracts or similar
documents.
All that Harms DP said at para 39 in
KPMG
was that ‘the rules about admissibility of evidence in this
regard do not depend on the nature of the document, whether statute,
contract or patent’. Self-evidently, the legislative process
which culminates in an enactment, and the subsequent interpretation
of that enactment, are quite different from the preceding
negotiations which lead to the conclusion of a contract and the
subsequent
interpretation of the contract. It is difficult to see how
‘commercial sensibility’, alluded to by Van der Merwe JA,
can play any role in interpreting a statute. And a statute must apply
to all equally – its interpretation cannot be dependent
on a
particular contextual setting, nor can it vary from one factual
matrix to the next. Context is fact-specific and can be applied
in
the interpretation of contracts and like documents, but not of
statutes.
[2]
[32]
What is required when seeking to ascertain the meaning of legislation
is to subject the words used to an engagement, not with
speaker
meaning, but with the principles and standards that are appropriate
to relevant law making exercise and the
subsequent
exercise of legal interpretation. In the case of fiscal legislation,
an appropriate standard is the
contra
fiscum
rule which is based upon the idea that no tax can be imposed upon a
subject of the State without words in legislation clearly evincing
an
intention to lay a burden on him or her. (
Coltness
Iron Co v Black
(1888) 6 App CAS 315
(HL) at 330; LR Dison ‘The Contra Fiscum
Rule in Theory and Practice’
1976 (93)
SA
LJ
159).
In the case of tariff headings, the Brussels Notes and the
General Rules for the Interpretation of the Harmonized System provide
a further basis to determine the meaning beyond a rigid recourse to
sentence meaning.
[33]
Recourse to the meaning of the speakers of words used in a statute is
not determined in the same fashion as that of words used
in a
contract. In order to ascertain the intention of the lawmaker, one
must have regard to the appropriate principles of law-making.
In the
instance of the
contra
fiscum
rule,
absent unambiguous language, the rule will be decisive in favour of
the taxpayer in cases of doubt (
Estate
Reynolds and others v Commissioner for Inland Revenue
1937 AD 57
at 70;
Willis
Faber Enthoven Ltd v Receiver of Revenue
[1991] ZASCA 163
;
1992 (4) SA 202
(A) at 216 C). The words employed
in the statute must be the primary enquiry to consider whether they
admit of
any doubt or ambiguity. If not, effect must be given
thereto, unless a glaring absurdity results which the lawmaker could
not have
contemplated. (
Public
Carriers Association and others v Toll Road Concessionaries (Pty) Ltd
and others
1990 (1) SA 925
(A) at 942I – 943A). As is correctly pointed
out in Lawsa, this approach, laid down in a number of judgments of
our courts
relating to the interpretation of a legislative enactment,
is based upon the literalist-cum-intentionalist view (
Lawsa
(2 ed)
vol 25, Part 2 ibid at 331, footnote 38).
[34]
In addition there is the compelling consideration that the
Interpretation Act 33 of 1957 applies only to legislation. Section
1
reads:
‘
1.
Application of the Act.
The
provisions of this Act shall apply to the interpretation of every law
(as in this Act defined) in force, at, or after the commencement
of
this Act in the Republic or in any portion thereof, and to the
interpretation of all by-laws, rules, regulations or orders made
under the authority of any such law, unless there is something in the
language or context of the law, by-law, rule, regulation
or order
repugnant to such provisions or unless the contrary intention appears
therein.’
This
distinction reinforces the view that the interpretation of a statute
cannot simply be equated that of a contract. Finally s
39(2) of the
Constitution mandate a recourse to the spirit purport and objects of
the Bill of rights in interpreting any legislations.
[35]
Applied to the present dispute, at best for the appellant the words
employed may be considered to be open to the interpretation
for which
it argued. But as we have suggested, the application of speaker
meaning as determined by the purpose of the provision,
the background
and production of the document which appellant seeks to call into
aid, (
Endumeni
at para
18) is not easily applicable to legislative enactments, including a
customs tariff.
[36]
Appellant contends that, even if the narrow meaning is plausible, it
must give way to the more expansive interpretation of
the header as
contained in the Brussels Note. But, as is clear from the
hypothetical analogy to cars and SUV’s, the wording
employed is
far from ambiguous. Indeed, the South African Embassy and Mission to
the European Committees in a letter to the WCO
of 16 August 2002, in
which the meaning of subheading 8415.10 was debated, wrote:
‘
South
Africa is therefore of the view that the current wording of the
subheading is restrictive and relates to window or wall type
only,
hence the use of a comma, rather than a semi-colon. An important
point to note here is that the intention of what is to be
covered by
this subheading is not the issue. It may very well be that the
Secretarial intended this subheading to cover ceiling
types as well.
The question that needs to be addressed is whether the wording
currently used can be seen to reflect that.’
[37]
This letter provides a succinct summary of the proper interpretive
exercise to be applied to the subheading, one which is consistent
with the approach to the classification of goods as was
confirmed by this court in
The
Heritage Collection
,
above at para 10. A further consideration in favour of this
interpretation is that the appellant’s suggested
interpretation,
namely that all self-contained and split-system air
conditioning machines fall within tariff heading 8415.10, would
render the
use of the words ‘window or wall types’ in the
heading superfluous. Such an interpretation would be contrary to the
presumption against superfluity (see
Commissioner
for Inland Revenue v Southern Life Association
1986(4) SA 717(A) at 729J-730A). Accordingly, we would dismiss the
appeal with costs.
________________________
S
A Majiedt
Judge
of Appeal
________________________
D Davis
Acting Judge of Appeal
APPEARANCES
For
Appellant:
A Meyer SC,
with him W Mothibe
Instructed by:
MacRobert Attorneys,
Pretoria
EG
Cooper Majiedt Inc, Bloemfontein
For
Respondent:
J P Vorster SC
Instructed by:
Shepstone & Wylie
Attorneys, Johannesburg
Webbers, Bloemfontein
[1]
Expressed in the
language of modern linguistic philosophy, the approach adopted by
Wallis JA in
Endumeni
draws
a distinction between sentence and speaker meaning. While the words
used in the text to be interpreted are to be classified
as sentence
meaning, speaker meaning is that which can be attributed to the
speaker from an examination of the context and the
circumstances
which gave rise to the existence of the sentence under examination
interpretative process (Paul Grice
Studies
in the Way of Words
(1989)). In other words, sentence meaning is not the alpha and omega
of the inquiry. There may, however, be a need to draw a
distinction
between contracts and similar documents which are created after
negotiations between a defined group who participate
actively in the
process and statutes. The drafting and subsequent interpretation of
statutes cannot easily fit into an objectively
determined shared
purpose of sharing information which may be ascertained in respect
of a contract or similar form of document.
[2]
The distinction we seek
to draw between a contract and a legislative enactment becomes
important in that it is difficult to find
an analogous purpose to
speaker meaning when considering the relationship between the
legislature and various parts of the audience
affected by the
enactment. In short, the purpose may be more difficult to divine by
way of reliance on an objective theory to
determine speaker meaning.
For example, given the negotiations which are part and parcel of the
legislative process, it is often
the case that a majority of those
members of a legislature who vote in favour of a bill has the aim
that the legislation not
be interpreted accurately, but rather in a
way that yields stronger or weaker regulation than was in fact
enacted. (In general,
see Mark Greenberg UCLA School of Law of
Research Paper No 10 -35 at 4).