The meaning of established must be construed wider than
being registered, legally incorporated or some physical, or
virtual presence10. The EU case law and European Data
Protection Board guidance on meaning of “in the context of
the activities of an establishment” must not be interpreted
restrictively 11 . On the other hand, the existence of an
establishment within the meaning of the GDPR should not be
interpreted too broadly12.

WHAT DATA IS
PROTECTED UNDER
THE ACT?
The data protected is of any person; a natural person, meaning
that the person should be living, and identifiable or identified
as a person. Information of deceased persons is personal data

WHEN IS THE ACT
ENFORCEABLE?

but not considered as personal information for processing
purposes and therefore not protected at the same levels as
that of a living and identifiable individual.
In South Africa for example, POPIA Section 6(1) provides that
information collected for individual personal use or family use
is not considered personal data for purposes of compliance
with POPIA. Zimbabwe’s Act is silent. Further POPIA Section
7 excludes personal information that is being processed ‘solely
for the purpose of journalistic, literary or artistic expression
to the extent that such an exclusion is necessary to reconcile,
as a matter of public interest, the right to privacy with the right
to freedom of expression.’
The EU GDPR article 2(c) on material scope provides that the
GDPR provisions does not apply when the processing of

The Act came into force the day it was gazetted. This means
that compliance is immediate and therefore everyone concerned
or conducting data processing must endeavour to comply with
this law, within a reasonable period. This approach while
intended to avoid gaps in regulatory enforcement of data
protection, creates difficulties in compliance, oversight and
implementation. The enforcement of POPIA was in stages,
and had transitional provisions to allow individuals, companies
and government sufficient time to put in place the required
operational mechanisms13. Equally, under POPIA, the data
protection Authority, the Information Regulator, required sufficient
time to put in place necessary structures, funding and human
resources14.
10
11
12
13
14

8

personal data is ‘by a natural person in the course of a purely
personal or household activity’. In that regard, while the Act
is not explicit, the trend has been that data for personal use
or family use is not covered as that does not constitute
processing.

GDPR recital 22. The “[e]stablishment implies the effective and real exercise of activities through stable arrangements. The legal form of such arrangements, whether
through a branch or a subsidiary with a legal personality, is not the determining factor in that respect.”
Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) - Version for public consultation Adopted on 16 November 2018;
WP 179 update - Update of Opinion 8/2010 on applicable law in light of the CJEU judgment in Google Spain, 16th December 2015
POPIA section 114.
Zimbabwe, POTRAZ as data authority was already in existence, and functional at the time of gazetting of the Act.

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