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General remarks regarding gambling as a concept
Despite the various definitions that exist, there is no ultimate, general definition for gambling. As Collins points out, some activities fall within the scope of gambling even though people might not ordinarily regard those activities as gambling.33 In this regard, he mentions examples such as lotteries, prize draws and newspaper competitions.34 McMillen notes that gambling generally has a restricted definition in academic writing, which excludes activities such as private gambling (where the money does the rounds within a closed group of players) or even insurance.35 He points out that the meaning of the concept depends on the culture, society and era in which it takes place.36 He notes that the meaning of the term normally centres on the financial element – the staking of money or something of value.37 However, he informs the reader that it can play a social or even a religious role in some cultures or societies.38 One aspect of gambling that is certain39 is that it is based on an event that is uncertain.40 This uncertainty is central to the definition of gambling. Devereux explains that an event is uncertain if “the outcome cannot be adequately controlled or predicted by the parties engaged on the basis of knowledge and techniques legitimately available”.41 No matter to what degree, the outcome of gambling always depends on external factors that cannot be controlled.42
Even though chance plays a key role in gambling, some gamblers regard particular types of gambling as games of skill.43 Herman warns that one cannot make an absolute, clear-cut distinction between gambling games, because the player’s perspective must be taken into account.44 When playing roulette, one person might have the view that he is taking part in a game of skill, while another might regard the activity merely as a game of chance.45 Nevertheless, as Reith points out, chance is found in all types of gambling to one degree or another.46 Roger Caillois divided the human activity of play into four categories.47 Authors often divide gambling games into two of Caillois’s four categories: agonistic games and aleatory games.48 Agonistic games involve skill, while the outcome of aleatory games is determined by chance.49 Subject to his warning about making clear-cut distinctions, Herman is of the view that gambling games can actually be divided into all four of Caillois’s categories.50 For example, he classifies backgammon, poker and handicapping (sports betting, horse playing and even stock market playing) as agonistic games. Under aleatory games, he includes dice games, blackjack, roulette, lotteries and hedging.51 He regards games that involve cheating and misleading as mimicry, and marathons and plunging as vertigo games.52
People’s reasons for gambling
In order to regulate a particular behaviour, it is important to understand why someone engages in that behaviour in the first place. It is submitted that if one understands what motivates a person to do something, it will be easier to control the factors that lead to such behaviour and the circumstances in which the behaviour is manifested, if such control is necessary. One can also control the manner in which others enable the person’s behaviour. In section 2.2 above, the play element of gambling and promotional competitions was examined. The discussion touched on people’s need for play and play’s function in society. The focus, though, was more on the nature of gambling as a form of play and the various types of play. In this section the scope will be narrowed to people’s reasons for engaging in gambling and promotional competitions.
When it comes to gambling, one can consider various factors that motivate a person to participate. The opportunity for financial gain might be the most obvious reason.128 Clotfelter and Cook suggest that some people are drawn to lotteries by the mere chance of winning money, even if just a little, since it can better their lives.129 However, they also argue that some participants might be misled into playing lotteries because they do not properly understand the small odds of winning.130 In this regard, they point out that, despite the odds, some people still take part in lotteries because they feel that they are lucky, that they can devise a system to win or even because they are purely superstitious.131 Rosecrance adds that some people might gamble to show that they are wealthy, even though they might know that they will not make money out of it.132 Brenner and Brenner suggest that competition between peers motivate people to take risks and gamble. If someone’s friend becomes wealthy, that person might start gambling in order to try and catch up with their friend.133 However, as the saying goes, money is not everything. As Walker points out, the motivation behind gambling behaviour is not simple and economic reasons on their own are not sufficient to explain why people gamble.134 Although persons might gamble in order to make money and improve their circumstances, research shows that gambling is not a profitable activity.135 It has the promise of big wins, but gamblers’ losses exceed their winnings. Most people waste their money on gambling and lotteries.136 Walker states that if gambling was a financial investment, a gambler would quickly change his bankers due to the negative results yielded.137 Yet, people are still attracted to gambling and lotteries. In Walker’s view, only a few people would gamble if economic reasons were the only drivers behind gambling – perhaps only those with “economically masochistic urges”.138 As such, he suggests that psychological rather than economic reasons stimulate people to gamble.139 In this vein, Kusyszyn remarks: “During gambling, money loses its economic value. The gambler is seen to be playing with money rather than for it.”140
1 : INTRODUCTION
1.1 Research statement
1.2 Research aims and enquiries
1.3 Hypotheses
1.4 Significance of the research
1.5 Approach and method
1.6 Choice of comparative jurisdictions
1.7 Delineation
1.8 Outline of chapters
1.9 Reference techniques
2 : BACKGROUND
2.1 Introduction
2.2 Terminology
2.3 The Play Element
2.4 Policy and Regulation
2.5 The Consumer Protection Perspective
2.6 The Marketing Context
2.7 Conclusion
3 : AN OVERVIEW OF THE HISTORY OF GAMBLING, LOTTERIES AND PROMOTIONAL COMPETITIONS
3.1 Introduction
3.2 A brief history from a global perspective
3.3 The South African historical context
3.4 Conclusion
4 : THE REGULATION OF PROMOTIONAL COMPETITIONS IN NEW ZEALAND AND GREAT BRITAIN
4.1 Introduction
4.2 New Zealand
4.3 Great Britain
4.4 Conclusion
5 : PROMOTIONAL COMPETITIONS UNDER THE LOTTERIES ACT AND THE CONSUMER PROTECTION ACT
5.1 Introduction
5.2 Application of the Lotteries Act
5.3 The promotional competition provisions that were repealed by the CPA
5.4 Promotional competitions under the CPA
5.5 Promotional competitions and consumer privacy
5.6 Sanctions
5.7 Conclusion
6 : SELF-REGULATION OF PROMOTIONAL COMPETITIONS
6.1 Introduction
6.2 Self-regulation in general
6.3 Examples of international self-regulation
6.4 Self-regulation of advertising in South Africa
6.5 General
6.6 Conclusion
7 : CONCLUSION AND RECOMMENDATIONS
7.1 Conclusion
7.2 Recommendations
7.3 Final remarks
7.4 Suggestions for further research
