Communications minister Solly Malatsi may try to regulate gambling through telecoms legislation. (Photograph: Pexels)
Communications minister Solly Malatsi could be sued if he tries to use telecommunications laws to restrict gambling on mobile handsets instead of the relevant gambling legislation.
This is according to gambling law expert Wayne Lurie, of Lurie Inc Attorneys, who warns that neither the minister nor the Independent Communications Authority of SA (ICASA) has the authority to determine which gambling products South Africans may legally access.
“That definitely would be an administrative law challenge, a constitutional challenge to this, for sure, if it was implemented,” Lurie tells ITWeb.
Lurie’s warning follows Malatsi’s written Parliamentary response, dated 6 October, to Rise Mzansi MP Songezo Gana, who asked whether he intended to introduce measures to curb gambling and betting vouchers purchased through mobile network providers, including safeguards to prevent minors from accessing them.
Malatsi says he will engage ICASA to establish what measures could be introduced within its regulatory mandate.
“This will include considering whether existing consumer-protection measures within ICASA’s regulatory framework are adequate and whether further interventions within its mandate may be warranted,” he says.
Malatsi has not announced a ban, or committed to introducing restrictions.
However, Lurie argues that the communications minister cannot acquire authority over gambling simply because consumers use mobile networks to access betting products. “If an executive doesn’t have powers delegated to him by legislation, then he can’t exercise those powers.”
Lurie says gambling is governed by the National Gambling Act and applicable provincial legislation, which determine what activities are lawful, how operators are licensed and which authorities are responsible for enforcement.
The Electronic Communications Act, by contrast, governs electronic communications services and networks, Lurie says. “There’s a lot of activities that take place through a cellphone, but you can’t, by the mere fact that they are conducted through a cellphone, purport to regulate them.”
In the Parliamentary response, Malatsi acknowledged that using a mobile network to purchase or access a gambling voucher does not automatically bring the underlying gambling product within ICASA’s jurisdiction.
Malatsi nevertheless indicated he would explore consumer-protection interventions with the regulator.
Department of Communications and Digital Technologies minister Solly Malatsi.
Lurie says ICASA’s authority extends to matters such as premium-rated telecommunications services, including certain products charged directly against cellphone airtime. “If you want to address illegal gambling, you have to do it via the National Gambling Act.”
Lurie likens the cellphone to a slot machine in a casino: both are devices through which gambling takes place. “He [Malatsi] can’t limit the gambling on cellphones any more than he can on slot machines or laptops.”
In a statement, Lurie warns consumers could simply switch to alternative payment methods, while restricting one channel risks pushing some away from licensed operators towards unlicensed gambling platforms.
He argues that more effective measures would include stronger age verification, enforcement of gambling exclusions and intervention where betting behaviour indicates potential harm.
Authorities should concentrate on enforcing existing gambling legislation, particularly against illegal offshore operators, rather than attempting to regulate gambling indirectly through telecommunications law, says Lurie.
However, Lurie acknowledges that Malatsi has not announced a ban, or committed to introducing restrictions. “He didn’t say, I’m going to put an end to this. He did limit himself. He said, I’m going to look into what we can do about it.”