Gilchrist v The State

The appellant, Brendon Stephen Gilchrist, was charged in the Regional Magistrates’ Court, Benoni, with the murder of Mr Thulani Khuzwayo and unlawful possession of a firearm. The State alleged that on 26 January 2016 the appellant entered the home of his former partner’s grandparents in Etwatwa armed with a firearm and fatally shot the deceased. The appellant and the key State witness, Ms Lindiwe Motaung Jnr, had been in a long-term relationship marked by violence, which had ended shortly before the incident. Ms Motaung Jnr and her grandmother identified the appellant as the shooter and described events before and after the shooting, including a physical struggle. The appellant denied involvement, raised an alibi that he was at home and with his mother at the relevant time, and denied possessing a firearm. He was convicted on both counts and sentenced to 25 years’ imprisonment, later reduced on appeal to 20 years. His appeal to the Supreme Court of Appeal was limited to conviction.

The application for leave to adduce further evidence on appeal was refused and the appeal against conviction was dismissed.

The case clarifies the application of s 93ter(1) of the Magistrates’ Court Act following Director of Public Prosecutions, KwaZulu-Natal v Pillay, particularly where an accused is legally represented and the record reflects that no assessors were required. It also reinforces the stringent requirements for admitting fresh evidence on appeal, especially recantation affidavits, and affirms the cautious approach appellate courts adopt in disturbing credibility findings and factual determinations of trial courts.