Minister in the Presidency Mondli Gungubele is concerned that, despite holding ministerial positions, some African National Congress (ANC) leaders still resort to making detrimental statements that could distort government positions as they eye powerful positions at the party’s 2022 elective conference.

Speaking to News24 on Wednesday morning, Gungubele said strange statements could be expected during the "silly season", in reference to the lead-up to ANC elective conference in December.

He added that he did not want to cast aspersions about whether Tourism Minister Lindiwe Sisulu intended on running, but said he hoped her utterances were not a sign of the year to come.

Gungubele’s remarks stem from an opinion piece on IOL penned by Sisulu last week.

Sisulu questioned the Constitution and whether it had done enough to deal with structural issues brought about by apartheid.

She has faced widespread criticism over the article, in which she also questioned the moral standing of the country’s judges.

Gungubele said South Africa was confronted with economic challenges and rising unemployment, and that these should be the priorities for the government and the president at this time.

"We have always had a silly season during a year such as this. I hope it is not because the biggest thing our country is confronted with now is turning around the economy, which is doing very badly. Unemployment is on the increase, and the economy is shrinking. The biggest focus of the president now is to turn around the economy. You need conditions."

Duty to protect Constitution

He said the government had a duty to protect the Constitution and any possible fear investors may have based on comments made by a government minister.

"While among ourselves as Cabinet ministers, there are people who cast aspersions on [the] Constitution, the immediate thing to a foreign investor is that 'can I rely upon those people to protect me through the Constitution they have no confidence in?'. It is not a small matter for a minister to cast aspersions on the Constitution, which she made an oath to protect," Gungubele said.

He declined to say whether President Cyril Ramaphosa would be taking any action against Sisulu.

"I am deliberately staying away from that, because we have an intelligent president who knows when to talk to his ministers, and I am also very careful not to pretend to say I know what he is going to say.

"Where I am standing as the state, we have a responsibility that, at all material times, especially those who are deployed in government who made an oath to protect the Constitution, when they turn against it, to make a clear message that the state is not part of that narrative," he said.

In the article, Sisulu sarcastically laments the "sea of African poverty" and questions why it still persists, despite the existence of the Constitution which was revered across the world.

She dismisses the Constitution as a palliative, while questioning what exactly makes the Constitution the "agency" for addressing issues of "African poverty".

"What has this beautiful Constitution done for the victims [of colonialism] except as a palliative (Panadol)?" she asks.

However, Gungubele responded: "The worst part of her utterances was that they are an attack on the rule of law, and that is counterproductive, as it creates an environment that is orderless and makes it difficult to pursue the goals of the revolution. Because, for the goals of the revolution to be pursued, you need an orderly environment.

"To me, such utterances were a recklessness of the highest order, and the government will strongly distance itself in the interests of the Constitution."

ANC silent on Sisulu’s comments

While the ANC has remained silent on Sisulu’s opinions, some within the organisation have voiced their displeasure over the article.

In his capacity as a member of the ANC, justice ministry spokesperson Chrispin Phiri rubbished Sisulu’s claims that the Constitution was a neoliberal construct, and the reason behind South Africa's challenging economic conditions.

"One would expect a veteran of this calibre to know and emphasise – as Albie Sachs wrote in his four lectures entitled 'Oliver Tambo’s dream' – that the Constitution is not self-executing. It does not in itself provide equality, build houses, deliver education and health services, or offer protection against violence. What it does do is to establish a social, moral and institutional framework within in which these issues should be tackled.

"I have little doubt that many legal enthusiasts or scholars who have read Sisulu's article may have asked themselves several times while reading it whether the author appreciates this simple question: What is meant by the rule of law?" wrote Phiri in his opinion piece.