Attempts to restrict access to legally authorized gambling products through telecommunications regulation rather than gambling legislation could raise serious legal concerns and expose such measures to court challenges.

This is according to gambling law expert Wayne Lurie of Lurie Inc Attorneys, who says Communications Minister Solly Malatsi and the Independent Communications Authority of South Africa (ICASA) do not have the authority to determine which forms of gambling are lawful in the country.

While Malatsi can explore measures to protect consumers who access gambling products through mobile networks, Lurie argues that such interventions must remain within the legal powers assigned to the communications sector.

“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,” Lurie said.

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 that prompted the minister’s response focused on gambling and betting vouchers purchased through mobile network providers, including safeguards to prevent minors from accessing gambling products.

Malatsi acknowledged that purchasing a gambling voucher through a mobile network does not automatically make the underlying gambling product an electronic communications service subject to ICASA regulation. Lurie stressed that the minister had not announced a ban on mobile gambling and said it would be inaccurate to interpret his comments as such.

“The minister has not announced a ban on gambling through mobile phones, and it would be incorrect to suggest otherwise. 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,” he said.

South Africa’s Constitution assigns legislative authority over gambling and wagering to national and provincial governments. The National Gambling Act and provincial gambling laws provide the framework for licensing, supervision and enforcement, with provincial gambling authorities and the National Gambling Board carrying out their respective statutory responsibilities.

According to Lurie, the fact that a gambling transaction takes place over a mobile network does not transfer those responsibilities to ICASA.

“A football bet placed with a licensed bookmaker and authorized 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,” he said.

Lurie acknowledged that ICASA has a legitimate consumer protection role, particularly through its regulations governing premium-rated services. These rules address issues such as transparent pricing, subscription consent and third-party service providers. However, he cautioned that gambling vouchers sold through mobile platforms do not automatically fall within the scope of those regulations.

“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,” Lurie said.

The Electronic Communications Act also places limits on the minister’s authority to issue policies and policy directions. Lurie said any attempt by government to prohibit access to an otherwise lawful gambling product solely because it is accessed through a mobile network would require a clear legal basis.

“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,” he said.

Beyond the legal implications, Lurie questioned whether restricting specific methods of purchasing gambling vouchers would significantly reduce gambling-related harm. He argued that consumers could simply switch to alternative payment methods to access the same products. Such restrictions could also push some users away from licensed and supervised operators towards unlicensed alternatives.

Lurie said effective consumer protection requires measures such as robust age verification, enforcement of gambling exclusion mechanisms and timely intervention when gambling behaviour indicates potential harm. He called for cooperation among regulators, including information sharing and coordinated enforcement within their existing statutory powers.

“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,” he said.

He added that consumer protection measures must be grounded in clear legislation and respect the division of regulatory responsibilities.

“South Africans need effective protection under clear laws. A cellphone does not give the communications minister powers that gambling legislation has entrusted elsewhere,” Lurie said.