of Personal Information Act in Zimbabwe, and this might be
a drafting error or demonstration of intent to pass the Act. 6
Therefore, in interpretating the provisions of the Act, one must
always take an approach that advances a higher level of data
protection consistent with the Constitution and any other
relevant international treaties and conventions. However, one
might suggest that if any other laws are inconsistent with the
provisions of the Act, then the Act prevails if it provides better
and higher protection as long as that is not inconsistent with
the Constitution.
South Africa’s POPIA provides under Section2 (a) and (b)
respectively that:

This Act applies, subject to paragraph
(b), to the exclusion of any provision
of any other legislation that regulates
the processing of personal information
and that is materially inconsistent with
an object, or a specific provision, of
this Act…If any other legislation
provides for conditions for the lawful
processing of personal information
that are more extensive than those
set out in Chapter 3, the extensive
conditions prevail 7.

WHERE IS THE
DATA PROCESSING
TAKING PLACE?
Territorial Principle
The Act under Section 4 introduces a territorial scope of
application of the Act. The Act is applicable if data processing
is ‘carried out in the context of the effective and actual activities
of any data controller’. The Act requires that if data controller
is not established in Zimbabwe, then a representative must
be appointed in Zimbabwe 8. This mean that any entity that
processes Zimbabweans’ personal data must designate a
representative in Zimbabwe. The meaning of effective and
actual activities of the data controller requires additional
guidance. Actual activities of the data controller might be
defined to mean an activity that is connected between the
reason for existence of the data controller and the data
processing in question. The two must be related. The GDPR
territorial scope applies if the data controller has an
establishment that economically supports the data processing
carried out by the main company 9.

Establishment Principle
The Act in Section 4 (2) introduces the establishment principle
allowing for the real exercise of data processing activity through
some arrangements either of a temporary or permanent nature
of the data controller. This principle also provides for choice
of law depending on where the data controller is established.
For the Act to apply, the data controller need not be permanently
established in Zimbabwe.

6
7
8
9

Even it was not an error, then the Cyber and Data Protection Act provisions might have to change to incorporate this proposed law.
POPIA section 3(2)(b).
This provision if widely interpretated sets the stage for legal liabilities for internet-based platforms.
European Court of Justice, Google Spain C-131/12.

M I S A

Z I M B A B W E

•

G U I D E

T O

T H E

Z I M B A B W E A N

C Y B E R

A N D

D A T A

P R O T E C T I O N

A C T

-

2 0 2 2

7

Select target paragraph3