Barko Financial Services ordered to stop charging service provider fee

The Tribunal made its ruling following an action brought by Barko, a credit provider registered under the National Credit Act 34 of 2005, in response to a Compliance Notice against it issued in June 2010 by the National Credit Regulator.

The Tribunal found that the company indirectly induced and/or required consumers to enter into an agreement in terms of which they are required to pay a service provider fee for processing payments to Nupay Solutions (Pty) Ltd.

Nupay and Barko are independent entities engaged in a business relationship in terms of which Nupay provides Barko with management services, in exchange for the payment of various fees.

The Tribunal heard that consumers get to know about Nupay and the AEDO system as a method of meeting their payment obligations in terms of the credit agreements that they enter into with Barko.

Approximately 90% of Barko clients' payments' obligations in terms of the credit agreement are managed through the Nupay system in exchange for a service provider fee (SPF) paid by the consumer under the Nupay Service Agreement. The SPF is additional to the service fee payable by the consumer in favour of Barko.

In its judgment, the Tribunal said that inasmuch as the SPF is payment for the processing of the consumer's payment obligation in terms of the credit agreement, it is part of the "routine administration costs of maintaining the credit agreement" and, as such, forms part of the service fee as defined.

The Tribunal noted that Sections 100 and 101 of the National Credit Act seek to limit what a consumer can be required to pay for the costs of credit in respect of a credit agreement. The maximum prescribed service fee in terms of the regulations to the Act is R50.

Consumers left with no choice

The judgment found that consumers were left with no real choice of channels through which to meet their payment obligation to Barko. In addition, the timing of the presentation of the service agreement by Barko employees to consumers, and the fact that the form and appearance of the Nupay agreement is strikingly similar to the form and appearance of the prescribed documentation, meant that the consumers were "induced" to enter into the Nupay Service Agreement.

The Tribunal therefore found that the levying of the service provider fee over and above the limits set for service fees in the regulations under the Act is unlawful and exposes consumers to an additional monetary liability not permitted by the Act.

Barko was therefore ordered to stop charging its customers a service provider fee for processing payments which, if added to the service fee under the customers' credit agreement, is more than R50.

Barko was also ordered to reimburse its customers the portion of the service provider fee paid by them which, when added to the service fee charged by it, exceeds R50. Such reimbursement has to take place within 60 business days of providing a list to the National Credit Regulator of affected consumers, which in turn has to be provided within 60 business days of the date of judgment.