It is with great sadness that I was told today that Keith McCall died a few days ago in Durban. Our thoughts are with Wendy and the family and our family expresses its sincere condolences to them. Keith was one of nature’s true gentlemen. He was very fair-minded and respected the rights of everyone. Keith made an immense contribution to the development of labour law in its early stages and for that alone we should all be very grateful to him and proud of his achievements.
Keith was appointed as a judge in about 1992 and even after retiring he acted as a judge of the labour appeal court. There are 6 judgments he wrote in that capacity during the period 2005 to 2010. Before that he wrote 24 judgments in the former labour appeal court as well as at least 4 important judgments in the high court concerning labour issues. His first judgment in the labour appeal court is dated 18 February 1992. In all 20 of his judgments concerning labour law have been reported.
One of his early important judgments concerned the invalidity of an employer’s notice of termination. The employer failed to notify the employees in language that was unconditional, clear and unambiguous. It meant that the employees were still regarded as employees because the purported ‘dismissals’ were unlawful and void. See Tawusa v Natal Co-operative Timber Ltd (1992) 13 ILJ 1154 (HC). The attorney acting for the trade union was none other than Raymond Zondo, now a judge in the constitutional court
I had the distinct privilege of being one of his two assessors in the labour appeal court in a number of cases starting in 1992. He was a clear thinker and always upheld the best traditions of the profession and acted with complete fairness and justice towards all litigants. In one case he ordered the reinstatement of a senior employee because he suspected that the employer has tried to ‘engineer’ his dismissal and should have applied the concept of ‘bumping’. See Unilever S.A. (Pty) Ltd v Salence  5 BLLR 547 (LAC).
I was briefed as Keith’s junior in a number of cases whilst I was still practising at the KZN bar between 1976 and 1981. Thereafter as an attorney I briefed Keith in a number of important cases in the labour courts. Just after I was re-admitted to practise as an attorney I was asked to represent the employer in the first private wage arbitration in many years. The employer had perhaps unwittingly signed a ‘recognition agreement’ in which all disputes, interest and rights, had to be decided by private arbitration. A dispute arose over wage adjustment in 1981. Retired justice Fannin agreed to be the arbiter. I suggested briefing Keith McCall SC. Client wanted an unequivocal assurance from me that he was the best counsel they could brief. The late justice Anton Mostert had just left the bench and was again practising at the bar in KZN. I knew him from my days as an attorney in Johannesburg and appreciated that he was very well versed in the type of economic issues that would arise in the wage arbitration.
Reluctantly I was unable to provide the assurance sought by client and it was agreed to brief Anton Mostert SC. The trade union then approached Keith McCall to act for them. Very properly Keith asked me if we would have any objection to him accepting the brief. We had no objection and Keith duly appeared in the five day arbitration. He was outstanding and persuaded justice Fannin that the trade union deserved the ‘increase’ they sought. Cleint not was very impressed with my lack of judgement!
Keith was a Rhodes Scholar and displayed a very sound knowledge of law and took it very seriously. His judgments were always carefully constructed and reasoned allowing for no room for dissent. I am not aware of any of Keith’s judgments being overturned on appeal. He will be missed by the legal profession and all his friends.