Any attempt to restrict access to legally authorised gambling through telecommunications regulation, rather than gambling legislation, would raise serious legal concerns and could face a court challenge.
This is according to Wayne Lurie, from Lurie Inc Attorneys, who says that while Communications Minister Solly Malatsi is entitled to explore measures to protect consumers accessing gambling products through mobile networks, neither the minister nor communications regulator ICASA has the authority to determine which forms of gambling are lawful in South Africa.
“A bet does not become unlawful simply because it is placed on a cellphone. Nor does the use of a mobile network give the communications minister the power to decide which gambling products South Africans may access,” says Lurie.
His comments follow Malatsi’s indication that he intends to engage ICASA on consumer protection measures relating to gambling products accessed through communications networks.
The parliamentary question prompting the minister’s response concerned gambling and betting vouchers purchased through mobile network providers, including safeguards to prevent minors from accessing gambling products.
Malatsi acknowledges that purchasing a gambling voucher through a mobile network does not automatically make the underlying gambling product an electronic communications service regulated by ICASA.
“The minister has not announced a ban on gambling through mobile phones, and it would be incorrect to suggest otherwise,” Lurie says. “He is examining what ICASA can lawfully do within its existing powers.
“That is legitimate. But there is a fundamental difference between regulating a communications service and regulating the gambling activity accessed through that service.”
South Africa’s Constitution assigns legislative authority over gambling and wagering to national and provincial government. The National Gambling Act and provincial gambling laws establish the framework for licensing, supervision and enforcement, with provincial gambling authorities and the National Gambling Board exercising their respective statutory responsibilities.
Lurie says a transaction taking place through a mobile network does not transfer those responsibilities to ICASA.
“A football bet placed with a licensed bookmaker and authorised for online acceptance does not become unlawful because the customer uses a cellphone. Equally, prohibited interactive gambling does not become lawful simply because it is accessed through a different device.
“The lawfulness of the activity depends on the gambling product, the applicable legislation and what the operator is licensed to offer, not the device used to access it.”
Lurie acknowledges that ICASA has a legitimate consumer protection role, including through its rules governing premium-rated services, which address issues such as transparent pricing, subscription consent and third-party service providers.
However, he says that gambling vouchers sold through mobile platforms do not automatically fall within those rules.
“A telecommunications licence does not mean that everything a network operator sells falls under ICASA’s jurisdiction. Neither the minister nor ICASA can use telecommunications regulation to rewrite gambling law or assume powers Parliament has assigned elsewhere.”
The Electronic Communications Act also limits the minister’s authority to issue policies and policy directions, according to Lurie.
“If government attempted to prohibit access to an otherwise lawful gambling product simply because it was accessed through a mobile network, it would need a clear legal basis. Measures exceeding those powers would be vulnerable to legal challenge. Consumer protection cannot create legal powers that do not exist.”
Lurie also questions whether restricting particular methods of purchasing gambling vouchers would meaningfully reduce gambling-related harm.
“If consumers can purchase the same products through other payment methods, restricting one channel may simply change how they pay. There is also a risk of pushing consumers away from licensed, supervised operators towards unlicensed alternatives.”
He says effective consumer protection requires robust age verification, mechanisms to enforce gambling exclusions and timely intervention when behaviour indicates potential harm.
“Regulators should cooperate, share information and coordinate enforcement within their existing powers. The priority must be measures that genuinely protect consumers, not restrictions that may achieve little.
“South Africans need effective protection under clear laws. A cellphone does not give the communications minister powers that gambling legislation has entrusted elsewhere.”