Comments to Parliament on National Gambling Amendment Bill
Introduction
1. The
purpose of this memorandum is to provide comments by the Gauteng Gambling Board, in respect of the National
Gambling Amendment Bill as introduced
in the National Portfolio Committee on Trade and Industry.
2. The
comments are divided into two broad categories namely, general comments dealing with broad principles and technical
comments on specific provisions.
General Comments
3. The
structure of the current National Gambling Act is premised on certain fundamental principles. National Gambling Board is primarily
responsible for the development of
National Norms and Standards and a limited oversight function over the activities of the Provincial
Licensing Authorities. The radical
alteration of the role of the
National Gambling Board from a norm setter to a licensing authority has a serious impact on the
current structure of the legislation namely: -
3.1 The
Bill does not fit into the scheme of the current law and creates inconsistencies. Currently the National Gambling Board has been
entrusted with the power to
review the issuing and revocation of National licences in terms of sections 42 and 43. Inconsistency and ambiguity is created by
granting the National Gambling
Board the power to issue interactive gambling licences. The Bill
if passed in the current form will result in the National Gambling Board reviewing the issuing and revocation of
National licences issued by the Provincial Licensing
Authorities while National licences issued by it, will not be subjected a review regime
provided for the in the Act.
3.2 The
Provincial Licensing Authorities are best equipped to perform this function due to the wealth of experience and
capacity they have. The National
Gambling Board has neither the
capacity nor the experience to perform this function.
4. The
Bill has omitted critical provisions.
These provisions include application and licence fees, number of licencees to be issued, application
procedures, advertisement,
public hearing, penalties for late payment of fees and provisions relating to taxation. It is imperative that matters of this
magnitude are addressed in the Bill. It is arguable that if these matters are
intended to be dealt with by the Minister
by way of regulation, this may give rise to the risk of unconstitutional exercise of powers. The constitutional obligation on a
legislature to respect, promote,
protect and fulfill the rights entrenched in the Bill of Rights implies that where a wide discretion is conferred
upon a functionary, guidance should be provided
in the law as to circumstances, conditions or manner in which those powers are to be exercised otherwise it
should be regarded as unfair.
(See for example Dawood,
Shabali and Thomas v Minister of Home Affairs 2000(3) SA 936 CC; Janse van Rensburg NO v Minister of Trade
and Industry 2001 (1) SA 29 CC.)
From these cases it seems clear that mere procedures would not suffice,
as proper procedures prescribed by the Promotion of Administrative Justice Act
must in any case be followed. What the
Court has in mind is that the legislature should provide the executive with
clear guidelines for the exercise of the discretion. Depending on the power to be exercised, such
guidelines may have to set out the circumstances or conditions that must exist
before the discretion may be exercised, or the manner in which it is to be
exercised.
5. World Trade Agreement
Once Parliament approves the
licensing of interactive gambling, it would be difficult if not impossible to
protect the local gambling industry by not offending the World Trade Agreement
which
6. A number of amendments that are
required and which have previously been agreed to between the regulators and
the Department of Trade and Industry, have not been included in these
amendments. For example the current National
Gambling Act does not provide the process for the application to acquire a
financial interest in the holder of a national licence and the comprehensive
provisions relating to the regulation, control and licensing of the National
Horse Racing Authority. It might be
prudent to save the state unnecessary costs associated with the law making
process by incorporating these amendments into the current Bill.
7. Comments on specific clauses.
7.1 Ad Amendment of Section 1.
(a) “gambling
device:”
This definition is limited to the devices
that determine the results of the game. Gambling is a transaction consisting of the
various elements, namely input,
processing and output. All these
elements of the transaction are critical
from a regulatory point of view, for example, the type of the game the player chooses to participate in and
the amount of the bet both of which
form part of the input element are linked to a player protection or public interest and should fall within the
regulatory purview. The current definition merely confines
itself to devices linked to the second
element of processing. It is therefore
suggested that this definition
be extended to cover all the elements.
(b) “interactive
gambling licence“
In terms of the current scheme of the legislation,
a distinction is drawn between the
various types of licences namely, separate licences exists in respect of an operator, manufacturer or
supplier of software and employment. The
definition conflates these concepts. It
is suggested that this clause be
redrafted to separate these concepts.
(c) “manufacturer,
supplier or maintenance provider”
It is recommended that the definition be
extended to cover the manufacturer
or supplier of interactive equipment and software in line with the current legislative scheme.
7.2 Ad substitution of section 2
The Bill is promulgated in the public interest. This means that interactive gambling players
are protected from unlicensed and unscrupulous operators who may, offer
interactive games which are not fair and may not honour the players
winning. Accordingly the regulation of
interactive gambling should include the elimination of unlicensed
operators. It is recommended that the
application of the Act should be extended to gambling in general (licensed or
unlicensed) excluding the lottery.
7.3 Ad clause 4 (purpose of this Act)
In view of the comments above it is recommend that the
word “licensed” in paragraph (a) be deleted.
7.4 Ad clause 8 (insertion of section 5A)
It is suggested that this clause be moved to section 1 as
it is a definition of an interactive transaction.
7.5 Section 8
It is recommended that this clause be extended to cover
unlicensed interactive games.
7.5 Ad clause 19 and 20 (Jurisdiction of the
Board and responsibilities)
If Parliament accepts to leave the regulation and control
of gambling to the Provincial Licensing Authorities, a consequential amendment
will have to be effected to this clause.
7.6 Ad clause 21 (amendment of section 35)
This is another example of the amendment which does not
fit into the current legislative framework and which creates inconsistencies. The Board does not have the power to issue
provincial licences.