The legal implications of Buy Now, Pay Later services in South Africa
Explore the complexities of Buy Now, Pay Later services in South Africa, examining the legal challenges and regulatory uncertainties that could impact consumers and providers alike.
Image: Shutterstock
Buy Now, Pay Later (BNPL) payment options have strutted onto South Africa's financial runway with the swagger of innovation—offering interest-free instalments, bypassing traditional credit checks, and boasting sleek user interfaces that make old-school lay-bys look prehistoric.
For consumers, it feels like a dream: swipe today, split it tomorrow. For platforms, it's fintech gold. But beneath the surface of this frictionless façade lies a regulatory grey zone thick with risk, ambiguity, and potential litigation. Is BNPL empowering consumers, or quietly indebting them? And when the legal hammer finally drops, who's left holding the bill?
BNPL services allow consumers to make purchases immediately and pay for them in installments over a set period, usually without interest if payments are made on time. However, as BNPL usage increases, so do concerns around consumer debt, regulatory arbitrage, and financial exclusion.
The central question in South Africa is whether BNPL products fall within the ambit of the National Credit Act (NCA) or the Financial Advisory and Intermediary Services Act (FAIS Act). The National Credit Regulator is responsible for compliance with the NCA, while the Financial Sector Conduct Authority (FSCA) is responsible for compliance with the FAIS Act.
The South African BNLP landscape
The consumer credit environment in South Africa is governed by the NCA, which regulates all credit providers and mandates affordability assessments along with other consumer protection mechanisms. BNPL providers often argue that they are not credit providers, as their terms and conditions do not constitute a credit agreement. This is because they charge no interest and operate within a very short payment cycle (e.g. 4 to 6 weeks). As a result, many BNPL firms claim exemption from NCA obligations.
According to the Intergovernmental Fintech Working Group (IFWG), BNPL currently falls into a regulatory void. The NCR has taken limited action against providers, while the FSCA has yet to issue clear guidance. Consumers thus face reduced transparency, no guaranteed recourse mechanisms, and inconsistent contract terms.
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BNPL's legal classification determines the scope of regulatory obligations. If BNPL is credit, then the NCA mandates affordability checks, registration with the NCR, and extensive disclosures (amongst other things). However, most BNPL operators avoid these obligations by structuring their offerings as payment solutions or deferred billing.
The FAIS Act regulates financial advice and intermediary services. BNPL providers rarely claim to offer financial advice, and as such, FAIS oversight is generally not invoked. This ambiguity causes a jurisdictional conflict between the NCR and FSCA, with little resolution.
Moreover, South African consumers are often unaware of potential late fees, the implications of missed payments, or the lack of legal recourse, especially when providers collapse or change terms unilaterally.
While legal classification remains unresolved, enforcement action against BNPL providers in South Africa has been minimal. In practice, the NCR's enforcement has focused largely on traditional credit providers, while the FSCA's mandate remains unclear in the absence of explicit statutory triggers.
This lack of supervisory clarity raises risks of selective compliance, where only larger players seek legal advice or act preemptively, while smaller or offshore providers bypass South African oversight altogether. Moreover, without designated supervisory frameworks, enforcement becomes reactive, often occurring only after consumer harm has materialised.
The Conduct of Financial Institutions Bill (COFI Bill) is envisaged to address these regulatory gaps. A modern regulatory regime must therefore address not only classification and jurisdiction, but also enforcement mechanisms, investigative powers, and co-ordinated oversight, possibly through inter-agency memoranda of understanding or joint supervisory task teams. Without this, regulatory gaps become systemic vulnerabilities.
Global BNLP landscape
United Kingdom: The Financial Conduct Authority (FCA) will regulate BNPL under new legislation taking effect in 2026. Providers will be required to conduct affordability checks, obtain FCA authorisation, and ensure clear disclosures. Consumers will be granted Section 75 protections under the Consumer Credit Act.
Australia: The Australian Securities and Investments Commission (ASIC) has introduced legislation bringing BNPL under the National Consumer Credit Protection Act. From mid-2025, providers must hold a credit license, conduct responsible lending assessments, and comply with disclosure obligations. These requirements are tailored to balance innovation with consumer protection.
United States (US): The Consumer Financial Protection Bureau (CFPB) has classified BNPL loans accessed via digital accounts as 'credit cards', triggering protections under Regulation Z. Dispute resolution, refunds, and chargeback rights are now part of BNPL transactions, although industry litigation may reverse this.
These models demonstrate that proactive regulation, coupled with flexibility, is essential for managing BNPL risks.
Comparative legal analysis of South Africa
South Africa's current dual-regulator model (NCR and FSCA) is ill-equipped for the digital fragmentation of modern finance. The lack of a clear BNPL regulatory framework stands in contrast with jurisdictions where regulators have already expanded definitions of credit to include BNPL explicitly.
Key takeaways include: The UK's reliance on disclosure and licensing.
Australia's focus on credit licenses and suitability assessments.
The US approach of function-over-form classification (if it behaves like a credit card, it is regulated like one).
The hope is that the COFI Bill will reconcile its institutional gaps and avoid regulatory arbitrage by expanding statutory definitions and enforcing consistency.
Fintech partnerships and platform liability
BNPL services are frequently integrated directly into online retail platforms via Application Programming Interfaces (API) partnerships. This embedded finance model raises questions of liability, especially when the BNPL provider operates outside the regulatory net.
In South Africa, it is unclear whether a platform offering BNPL at checkout could be deemed to be providing or facilitating credit under the NCA. Retailers and marketplaces must consider whether they are indirectly exposing themselves to liability or reputational risk, especially if their BNPL partners engage in misleading conduct, impose unlawful fees, or collapse without notice.
Globally, regulators are beginning to scrutinise not just BNPL providers, but also the platforms and merchants who offer such services. The UK's FCA, for example, has signalled that contractual and operational accountability may extend beyond the primary credit provider. South African platforms should pre-emptively assess their BNPL partnerships through the lens of operational risk, consumer protection, and reputational resilience.
Digital identity and affordability in a credit-light economy
One major challenge for effective BNPL regulation in South Africa lies in consumer verification and affordability assessments. Without a robust credit history or consistent income documentation, many consumers who use BNPL services remain invisible to traditional risk models.
This opens the door to over-indebtedness, particularly among the underbanked. Future BNPL regulation must therefore account for the reality of fragmented digital footprints and low formal credit participation.
There is room for innovation: open banking frameworks, mobile payment data, and transactional analytics could support dynamic affordability models. However, this would require legal certainty around data access, privacy, and proportional use of financial profiling. BNPL operators who proactively invest in these tools, backed by transparent disclosures and consent practices, will likely be best positioned when regulation catches up.
BNPL has redefined consumer finance by promising simplicity and speed, but the country risks repeating mistakes seen in unregulated microcredit booms if it fails to address its regulatory gaps. Global trends show that regulation can evolve in tandem with technology. By embracing reform and cross-sector collaboration, South Africa can lead in creating a safe, competitive digital finance ecosystem.
* Lamola and De Meyer are partners at Webber Wentzel.
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However, as BNPL use increases, so do concerns around consumer debt, regulatory arbitrage and financial exclusion. The central question in South Africa is whether BNPL products fall within the ambit of the National Credit Act (NCA) or the Financial Advisory and Intermediary Services Act (FAIS Act). The National Credit Regulator is responsible for compliance with the NCA, while the Financial Sector Conduct Authority (FSCA) is responsible for compliance with the FAIS Act. The South African BNLP landscape The consumer credit environment in South Africa is governed by the NCA, which regulates all credit providers and mandates affordability assessments along with other consumer protection mechanisms. BNPL providers often argue that they are not credit providers, as their terms and conditions do not constitute a credit agreement. This is because they charge no interest and operate within a very short payment cycle (for example 4 to 6 weeks). As a result, many BNPL firms claim exemption from NCA obligations. According to the Intergovernmental Fintech Working Group, BNPL falls into a regulatory void. The NCR has taken limited action against providers, while the FSCA has yet to issue clear guidance. Consumers thus face reduced transparency, no guaranteed recourse mechanisms and inconsistent contract terms. BNPL's legal classification determines the scope of regulatory obligations. If BNPL is credit, then the NCA mandates affordability checks, registration with the NCR and extensive disclosures (among other things). However, most BNPL operators avoid these obligations by structuring their offerings as payment solutions or deferred billing. The FAIS Act regulates financial advice and intermediary services. BNPL providers rarely claim to offer financial advice and, as such, FAIS oversight is generally not invoked. This ambiguity causes a jurisdictional conflict between the NCR and FSCA, with little hope of resolution. Moreover, South African consumers are often unaware of potential late fees, the implications of missed payments and the lack of legal recourse, especially when providers collapse or change terms unilaterally. While legal classification remains unresolved, enforcement action against BNPL providers in South Africa has been minimal. In practice, the NCR's enforcement has focused largely on traditional credit providers, while the FSCA's mandate remains unclear in the absence of explicit statutory triggers. This lack of supervisory clarity raises risks of selective compliance, where only larger players seek legal advice or act preemptively, while smaller or offshore providers bypass South African oversight altogether. Moreover, without designated supervisory frameworks, enforcement becomes reactive, often occurring only after consumer harm has materialised. The Conduct of Financial Institutions Bill is envisaged to address these regulatory gaps. A modern regulatory regime must therefore address, not only classification and jurisdiction, but also enforcement mechanisms, investigative powers and co-ordinated oversight, possibly through inter-agency memoranda of understanding or joint supervisory task teams. Without this, regulatory gaps become systemic vulnerabilities. Global BNLP landscape UK: The Financial Conduct Authority will regulate BNPL under new legislation taking effect in 2026. Providers will be required to conduct affordability checks, obtain authorisation, and ensure clear disclosures. Consumers will be granted section 75 protections under the Consumer Credit Act. Australia: The Australian Securities and Investments Commission has introduced legislation bringing BNPL under the National Consumer Credit Protection Act. From mid-2025, providers must hold a credit licence, conduct responsible lending assessments and comply with disclosure obligations. These requirements are tailored to balance innovation with consumer protection. US: The Consumer Financial Protection Bureau has classified BNPL loans accessed via digital accounts as 'credit cards', triggering protections under Regulation Z. Dispute resolution, refunds and chargeback rights are now part of BNPL transactions, although industry litigation may reverse this. These models demonstrate that proactive regulation, coupled with flexibility, is essential for managing BNPL risks. Comparative legal analysis of South Africa South Africa's current dual-regulator model (the NCR and FSCA) is ill-equipped for the digital fragmentation of modern finance. The lack of a clear BNPL regulatory framework stands in contrast with jurisdictions where regulators have already expanded definitions of credit to include BNPL explicitly. Key takeaways include: The UK's reliance on disclosure and licensing. Australia's focus on credit licenses and suitability assessments. The US approach of function-over-form classification (if it behaves like a credit card, it is regulated like one). The hope is that the Conduct of Financial Institutions Bill will reconcile institutional gaps and avoid regulatory arbitrage by expanding statutory definitions and enforcing consistency. Fintech partnerships and platform liability BNPL services are frequently integrated directly into online retail platforms via application programming interface partnerships. This embedded finance model raises questions of liability, especially when the BNPL provider operates outside the regulatory net. In South Africa, it is unclear whether a platform offering BNPL at checkout could be deemed to be providing or facilitating credit under the NCA. Retailers and marketplaces must consider whether they are indirectly exposing themselves to liability or reputational risk, especially if their BNPL partners engage in misleading conduct, impose unlawful fees or collapse without notice. 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Future BNPL regulation must therefore account for the reality of fragmented digital footprints and low formal credit participation. There is room for innovation — open banking frameworks, mobile payment data and transactional analytics could support dynamic affordability models. However, this would require legal certainty around data access, privacy and proportional use of financial profiling. BNPL operators who proactively invest in these tools, backed by transparent disclosures and consent practices, will probably be best positioned when regulation catches up. BNPL has redefined consumer finance by promising simplicity and speed but the country risks repeating mistakes seen in unregulated microcredit booms if it fails to address its regulatory gaps. Global trends show that regulation can evolve in tandem with technology. By embracing reform and cross-sector collaboration, South Africa can lead in creating a safe, competitive digital finance ecosystem. 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