Lawyer Wayne Lowry warned on Monday that Solly Malatsi does not have the right to apply telecommunications regulatory norms to restrict access to legally permitted gambling games, and any attempt to do so could become subject to litigation.
Lowry, representing Lurie Inc Attorneys, commented on Malatsi's written response to a parliamentary question regarding gambling and betting vouchers purchased through mobile network operators. The question was posed by MP Riza Mzansi Makashule Gana and concerned the minister's intention to restrict such vouchers, as well as what guarantees his department requires from mobile operators to prevent minors from purchasing them.
A recent media report about South Africa introducing new rules for phone gambling proved inaccurate. Malatsi's response from October 6 does not announce the introduction of new rules; it only obligates the minister to engage with the communications regulator Icasa regarding what is possible within his existing powers.
Lowry stated: 'The Minister has not announced a ban on mobile phone gambling, and asserting otherwise would be incorrect. He is studying what Icasa can legally do within its current powers.'
In his response, Malatsi indicated that the National Gambling Act and provincial gambling laws form the legal framework for gambling and betting. He emphasized that using a mobile network or platform merely as a channel to purchase or access a betting voucher or gambling game does not make the product itself a service of electronic communications regulated by Icasa.
Nevertheless, he reported that he will discuss measures with the regulator that can be taken 'within its regulatory mandate' when communication networks are used to facilitate access to gambling, including assessing the adequacy of existing consumer protection measures.
Legislative Authority
Malatsi referred to the Icasa code of conduct for premium-class services, introduced in 2016, which requires licensees to ensure compliance with prescribed consumer protection standards for third-party premium services offered through their networks. However, he noted that any protective measures applicable to gambling vouchers would depend on the service structure and whether it falls under Icasa's jurisdiction.
In response to Gana's question about minors, the response contains no information on what guarantees the department currently requires from mobile operators. It is only stated that the age at which a person can legally gamble remains a matter of gambling legislation.
Lowry stressed: 'A bet does not become illegal simply because it is placed on a mobile phone. The use of a mobile network does not give the communications minister the authority to decide which gambling products South African citizens can access.'
The Constitution assigns legislative authority over gambling and betting to the national and provincial government. Provincial gambling bodies license and monitor operators in accordance with the National Gambling Act and provincial laws, while the National Gambling Council performs a supervisory function. Lowry added that a transaction conducted via a mobile network does not transfer these responsibilities to Icasa.
Lowry also noted that the Electronic Communications Act limits the minister's power to issue policies and directives. He concluded: 'If the government were to try to ban access to an otherwise legal gambling product solely because it was obtained via a mobile network, it would require a clear legal basis. Measures exceeding these powers would be vulnerable to judicial challenge.'
He also questioned whether restricting certain ways of purchasing gambling vouchers would reduce harm. 'If consumers can buy the same products through other payment methods, restricting one channel may just change how they pay. There is also a risk of pushing consumers away from licensed, controlled operators to unlicensed alternatives.'
In his view, effective consumer protection requires proper age verification, mechanisms for enforcing gambling exceptions, and early intervention when player behavior indicates potential harm. Lowry urged: 'Regulators must cooperate, share information, and coordinate enforcement within their existing powers. A mobile phone does not grant the communications minister powers that have been delegated elsewhere by gambling legislation.'