Absence of evidence does not prove innocence

29 Jul 2014 | Tony Leon | Original Publication:  BDlive

The phrase ‘the absence of evidence is not evidence of absence’ is a handy guide and frame for a welter of present events contending for attention, writes Tony Leon

SOME decades ago, when articled to a leading firm of Johannesburg attorneys, one of the formidable partners there asked me to research an esoteric point of law for an opinion he was preparing. I came up empty-handed and somewhat uncertainly advised him that there appeared to be no precedent on the issue. The partner looked at me bleakly and asked if I had ever heard of the saying that "the absence of evidence is not evidence of absence"?

I had not back then, but it has remained hard-wired in my consciousness as a warning to look more closely for the evidence needed. More recently — on the website www.skepticalraptor.com — I discovered that this ringing phrase is often a logical fallacy. This is so because, among other reasons, the "absence of evidence can be evidence of absence if substantial attempts to find the evidence have proven negative". Whatever its limitations, it is a handy guide and frame for a welter of present events contending for attention.

First in the frame was the evidence, or the absence of it, provided last week by Patricia de Lille to the commission of inquiry into the arms deal. In an opinion piece in the Mail & Guardian last week, Richard Calland referred to the 1994 Parliament as a "glorious era". For all its legislative activity and impressive bench of MPs, it was also the forum that nodded through the notorious arms deal. In his evidence before the commission, former president Thabo Mbeki was astute enough to remind it that it was president Nelson Mandela who approved the acquisition. But, equally, it was the response to the welter of corruption allegations that surfaced almost the day after the controversial package was announced, that created De Lille’s reputation as a fearless crusader against corruption.

In our nearby offices, the Democratic Party also received apparent evidence of wrongdoing, largely from people who had unsuccessfully tendered. But perhaps lawyerly caution prevented us, in the absence of any "smoking gun" evidence, to proceed further. De Lille certainly did so back then and announced that she had a "dossier" that would blow the lid off the scandal. She also promised to provide the parliamentary press gallery with the "evidence" within a month. She did not do so then but, finally, had her opportunity to share the contents of this "dossier" with the commission last week.

Far from explosive detail, the "dossier" was, according to reports, a damp and badly written squib. And even if she and certainly the Sunday Times, and the now defanged Scorpions had a hand in the arrest and conviction of Tony Yengeni and Schabir Shaik, they were essential bit players. Their convictions related to tiny amounts of cash or luxury cars dwarfed by the billions spent on the armaments themselves. Let’s hope future witnesses and Judge Willie Seriti do find the absence of evidence that has, 15 years later, eluded everyone else.

Second up in the absence of evidence frame is President Jacob Zuma. In Parliament last week, he gave the presidential seal of approval to the principle that no foreign nationals should own land. On the evidence side, the government’s own records reveal that barely 3% of our land is foreign-owned. Land is simply one form of property ownership, so why stop there? Why not ban foreign ownership of moveable and immovable property? Bonds and equities fall into the former category, the majority of which are owned "by foreign nationals" and are the reason our current account deficit can still be serviced.

But back to the land issue. I was involved, from Argentina, in assisting with a R100m investment by one of the largest South American citrus companies in the Eastern Cape. It has created hundreds of jobs and identified SA, with its excellent market access to the Middle East and Europe, as the global centre for its production of oranges. Here is tangible evidence of the power of foreign direct investment. Where is the counterevidence?

Finally, in this evidentiary trifecta, is the spectacular entanglement of red tape with which the Department of Home Affairs is determined to throttle our economy-saving tourism industry. Stanlib chief economist Kevin Lings was reported in Moneyweb as saying that tourism receipts in SA have risen at an annual average of about 15% since 1994. But home affairs, in the absence of any verifiable evidence, has decided that child trafficking is a more compelling danger than anything else. So biometric testing and unabridged birth certificates are now to be mandatory for all accompanying children. Watch that percentage shrink.

The evidence from these snapshots might be that of rhetorical and ideological overreach and absence of plain common sense.

•This is Leon’s final column in this format. From next month, it will appear monthly in Business Day in longer form and will also be published in The Times and the Sunday Times.