South Africa communications minister cannot rewrite gambling law, says expert

Wayne Lurie says mobile-network safeguards must respect existing gambling law, with licensing and oversight remaining with gambling authorities.

Key takeaways:

• Gaming law attorney Wayne Lurie has questioned whether ICASA can restrict access to lawful gambling products through mobile networks.
• Lurie said consumer protection must remain within existing legislation and cannot be used to rewrite gambling law or expand ICASA’s powers.
• His comments followed Communications Minister Solly Malatsi’s October 6 parliamentary reply on possible ICASA safeguards for gambling products accessed through mobile networks.
• Lurie said gambling licensing and oversight sit with provincial authorities and the National Gambling Board, and that ICASA does not gain those powers because a transaction uses a mobile network.
• He warned that restrictions affecting licensed operators could push consumers towards unlicensed alternatives and said any restriction on lawful mobile gambling needs a legal foundation.

South Africa.- Gaming law attorney Wayne Lurie has questioned whether South Africa’s communications regulator, the Independent Communications Authority of South Africa (ICASA), can restrict access to lawful gambling products through mobile networks, arguing that consumer protection measures must remain within the limits of existing legislation.

Lurie, founder and director of Lurie Inc. Attorneys and CEO of the Safe And Responsible Online Gambling Association (SAROGA), specialises in gambling law and regulation in South Africa. In a LinkedIn post titled “Why the communications minister cannot rewrite gambling law”, Lurie said efforts to protect consumers must respect the division of regulatory powers between communications and gambling authorities.  Lurie said: “Gambling harm deserves serious attention, but so do the limits of what the minister can legally do.”

His comments follow communications and digital technologies minister Solly Malatsi’s written parliamentary reply to Question 5106 on October 6, in which he said he would engage ICASA on safeguards for gambling products accessed through mobile networks. The question, from RISE Mzansi MP Makashule Gana, concerned vouchers bought through mobile network providers and safeguards to prevent minors from accessing them.

Malatsi said the engagement would assess whether existing consumer protections were adequate and whether further measures within ICASA’s mandate might be warranted. He also clarified that using a mobile network to purchase or access a gambling voucher does not automatically make the underlying product an electronic communications service regulated by ICASA. No new rules for mobile gambling vouchers had been announced.

Lurie argued that the Constitution gives Parliament and provincial legislatures shared lawmaking powers over gambling and wagering, excluding lotteries and sports pools. He said gambling legislation assigns licensing and oversight responsibilities to provincial authorities, alongside the National Gambling Board’s national functions. “ICASA does not acquire those powers because a transaction uses a mobile network,” added Lurie.

He said the device used to place a bet does not determine its legality, which depends on the activity, the applicable law and what the operator is licensed to offer. Prohibited interactive gambling remains prohibited whether accessed on a laptop or cellphone. He said: “Consumer protection is a legitimate objective but not a licence to rewrite gambling law” .

Lurie acknowledged that ICASA can contribute to consumer protection through its rules for premium-rated services, including certain paid SMS services. These rules address charges, subscription consent and third-party compliance. However, he argued that a gambling voucher sold through a mobile platform does not automatically fall under those rules.

Lurie also questioned whether restricting one payment channel would reduce gambling-related harm if the same vouchers remained available through other methods. He warned that measures that confuse consumers or discourage the use of licensed operators could push them towards unlicensed alternatives.

He also argued that the minister’s policy powers under the Electronic Communications Act cannot be used to rewrite gambling law or give ICASA new gambling powers. Cooperation between regulators, he said, cannot expand their legal authority; wider powers require proper lawmaking.

Lurie said effective consumer protection requires preventing underage participation, ensuring a punter’s exclusion applies across all operators and intervening when harmful gambling emerges. “Any restriction on otherwise lawful gambling through mobile networks needs a legal foundation,” he said, warning that measures exceeding those powers risk being struck down.

Frequently asked questions (FAQs)

• Can ICASA regulate gambling in South Africa? Wayne Lurie argues that ICASA cannot acquire gambling licensing and oversight powers simply because a gambling transaction uses a mobile network. He says those responsibilities rest with provincial authorities and the National Gambling Board under gambling legislation.
• What prompted the debate over mobile gambling vouchers? Communications minister Solly Malatsi said in a parliamentary reply on October 6 that he would engage ICASA on safeguards for gambling products accessed through mobile networks. The question concerned vouchers bought through mobile network providers and preventing minors from accessing them.
• Does using a mobile network make gambling an ICASA-regulated service? Malatsi said using a mobile network to purchase or access a gambling voucher does not automatically make the underlying product an electronic communications service regulated by ICASA. Lurie likewise argues that the device used to place a bet does not determine its legality.
• What consumer-protection measures does Lurie support? Lurie says effective protection requires preventing underage participation, applying punter exclusions across all operators and intervening when harmful gambling emerges. He also says any restriction on otherwise lawful mobile gambling needs a legal foundation.