Barko Financial Services (Pty) Ltd v National Credit Regulator and Another

Barko Financial Services (Pty) Ltd, a registered credit provider, required consumers who entered into credit agreements to also sign a so-called NuPay Service Agreement. Under this arrangement, consumers paid an additional ‘service provider fee’ to NuPay for processing repayments via an Authenticated Early Debit Order (AEDO) system. Barko contended that this fee was payable under a separate agreement between the consumer and NuPay and therefore fell outside the National Credit Act 34 of 2005 (NCA). The National Credit Regulator (NCR) investigated and issued a compliance notice, alleging that Barko unlawfully required or induced consumers to pay fees exceeding the maximum service fee prescribed by the NCA. The National Consumer Tribunal upheld the compliance notice (with modifications) and ordered Barko to reimburse consumers. Barko’s appeal to the High Court failed, and it then appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The Tribunal’s modified compliance notice, requiring Barko to refund consumers amounts paid in excess of the prescribed maximum service fee, remained in force.

The case clarifies that credit providers may not circumvent the fee limitations of the National Credit Act by structuring additional charges through supplementary or ostensibly third-party agreements. It affirms the broad enforcement powers of the National Credit Regulator and the National Consumer Tribunal, including the authority to order repayment to consumers.