Cybersecurity and Cybercrime
Laws in the SADC Region

https://zimbabwe.misa.org

inducing, inciting, instigating, instructing,
commanding or procuring to commit offence. In
terms of penalties, any person who contravenes
the provisions of the Act is liable on conviction
to a fine or to imprisonment for a period not
exceeding five years or to both a fine and such
imprisonment.

by the South African Constitution include:
propaganda for war, incitement of imminent
violence and advocacy of hatred based on race,
ethnicity, gender or religion, which constitutes
an incitement to cause harm.

Section 3 of the Act defines “unlawful acquiring
of data” as “any person who unlawfully and
intentionally overcomes any protection measure
which is intended to prevent access to data; and
acquires data, within or which is transmitted to
or from a computer system, is guilty of an offence.
Section 16 of the Act stipulates that “any person
who unlawfully makes available, broadcasts
or distributes, by means of a computer system,
a data message to a specific person, group of
persons or the 5 general public with the intention
to incite— (a) the causing of any damage to any
property belonging to; or (b) violence against,
a person or a group of persons, is guilty of an
offence”. The burden of proving the “intent to
incite” is very complicated. Similarly, section 18
of the Act, which deals with revenge pornography
is too broad. Negligence should be sufficient to
be convicted of unlawfully distributing revenge
porn as many people argue they did not intend to
distribute revenge porn. It is difficult to establish
the legal requirement of intention. Besides the
issue intention, both sections have key concepts
such as “broadcasts” and “distributes”, which are
not clearly defined. For instance, the definition of
“data message” in the proposed Bill is different
from the Hate Crimes Bill. This confusion over
key definitions opens room for the misuse of the
provision. It violates the freedom of expression
as outlined in section 16 of the South African
Constitution, which only excludes expression
that leads to “incitement of imminent violence”.
Some of the expressions explicitly outlawed

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Unlike similar laws in the region, the proposed
Bill requires more stringent conditions to be met
before a warrant is issued. However, sections
29 and 30 allow for the warrantless search
and seizure of computer devices under certain
circumstances. This means that the courts are
left with the onerous role of demarcating the
reasonable grounds within which warrantless
searches and seizures may be carried out without
unnecessarily and illegally violating a citizen’s
privacy. In many ways, the Bill can be viewed as
an adopted and improved version of SADC Model
Law. This does not mean the Bill is without its
own challenges. The Bill has been criticized for
attempt to limit the free flow of communications
through its opaque and broad definitions of ‘data
message’. Section 17(2) (d) refers to messages
which are “inherently false in nature”. There
are no objective criteria to determine what this
means. The causing of “mental, psychological or
physical harm” is taken from the Harassment
Act. The Bill thus alters the definition of what is
harmful in data messages. This is an overbroad
limitation of freedom of expression.
Section 38 of the Bill expands on the provisions of
the Regulation of Interception of Communications
and Provision of Communication-Related
Information Act (RICA), which has been singled
out as granting state security agencies with
excessive power to conduct surveillance on
citizens, investigative journalists and political
opponents. For instance, RICA does not provide
for notification of interception orders to affected
parties. This means the legality of such an order
cannot be reviewed because no notification of

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