High court strikes dealership’s appeal over remote testimony in civil dispute

A long-running dispute over a damaged Mercedes-Benz has resulted in a ruling clarifying when an order allowing a witness to testify remotely can be appealed in a civil case.

The Mpumalanga high court (Mbombela) has struck an appeal by NMI Durban South Motors (Pty) Ltd, trading as Garden City Motors, from the roll after finding that an order allowing an expert witness to give evidence by audiovisual link did not decide the underlying dispute and did not have the effect of a final judgment.

The case has its beginning in April 2019 when Thuli Nagel had a breakdown in her 2016 Mercedes-Benz GLC 220d while driving in Mpumalanga.

She called roadside assistance to have her vehicle towed for repair and Garden City Motors was at hand to do that.

However, when she examined the vehicle later, she alleged its condition had deteriorated while it was in the hands of Garden City Motors. She sought a second opinion from experts in the field, and they confirmed her suspicions.

Nagel demanded compensation from the dealership, but none was tendered, as it disputed liability.

Nagel then sued the company in the Mbombela regional court in August 2020 for about R400,000.

The trial began in February 2022. While Nagel completed her evidence and was cross-examined, her expert witness, a Mr Faltermeier, gave evidence in chief. However, cross-examination of the expert did not take place after the matter was postponed at the motor company’s request.

Four years have gone by and the magistrate has retired. Over time, the expert relocated to Germany and is no longer able to come to give evidence in person.

In 2002, a newly introduced rule 26 A in the Magistrates’ Court Rules provided for evidence through an audiovisual link in proceedings other than criminal proceedings. Nagel applied under this rule for her expert to testify via audiovisual means.

The company opposed this application and the magistrate came back from retirement to hear her application. The magistrate handed down an order allowing the application in September 2025.

The company applied for leave to appeal the magistrate’s order and raised 22 grounds of appeal.

However, Nagel raised a preliminary point challenging the appealability of the order granted by the regional court on the ground that it was an interlocutory order.

Writing for the court, acting judge president Takalani Ratshibvumo held that section 83 of the Magistrates’ Courts Act limited appeals in civil matters to specified categories of orders.

He said the company could only rely on section 83(b), which permitted an appeal against a rule or order “having the effect of a final judgment”.

He said the regional court order of September 2025 was not an order “having the effect of a final judgment” within the meaning of section 83(b), and the high court had no jurisdiction to entertain an appeal against it.

Ratshibvumo said the court was displeased that this trial has taken so long, and it was still far from over.

“What makes it worse is that it involves an ordinary member of the public. The manner in which it was conducted discourages members of the public from seeking justice through litigation.”

Ratshibvumo said had punitive costs been asked by Nagel, the high court would have considered it. However, Nagel asked for ordinary costs and the court ordered the company to pay Nagel’s costs on the party and party scale.