MINING LAW IN ZIMBABWE:

A PERSPECTIVE ON SURFACE RIGHTS AND UNDERGROUND RIGHTS OVER LAND

Introduction

The fight of who takes preference between a landowner who owns surface
rights and that of a mining or prospecting licence holder who owns
underground rights is not new at law. It is a battle that the courts in Zimbabwe
have heard one too many times. The law of the land separates the two rights
into very distinctive bodies where both rights can be defined. Despite this
distinction many fights erupt over this issue and the courts still answer the same
question “whose right supersedes the other?” This paper is an encapsulation of
these rights and what they entail.

Surface rights vs Underground rights.

Surface rights are conferred upon a landowner by virtue of Title to the land as
described by the Deeds Registry Act [Cap 20:05]1 and any other law an
example of which is the Agricultural Land Settlement Act [Cap 20:01]2. Surface
rights give the landowner right to use any of the resources found above the
ground. This is, right to any of the buildings, structures and water found within
the land, of which, the landowner would not have any right to the resources
found underground.

Underground rights are conferred upon any person or entity by virtue of the
Mines and Minerals Act [Cap 21: 05]3 (hereinafter “the Act”). Section 20 of the
Act gives prospecting rights to any person who is above the age of 18 years
and is a permanent resident of Zimbabwe or any agent of such person. These
rights are acquired upon the grant of a prospecting license from the Ministry of
Mines and Mining Development.

On the other hand, section 291 of the Act allows for the issuance to any person
of a special grant to carry out both prospecting and mining activities upon a
defined area which is situated within an area which has been reserved for
prospecting or pegging.

Clearly, when it comes to underground rights there are two specific rights in
concern, one for prospecting and the other for mining. There are also two

1
https://www.veritaszim.net/node/199
2
https://www.veritaszim.net/node/198
3
Mines and Minerals Act | veritaszim
 distinctive licenses, one, a prospecting license given under section 20 of the
Act and the other a special grant under section 291 of the Act.

Although, prospecting has not been clearly defined at law, the High Court of
Zimbabwe in Mount Grace Farm (Pvt) Ltd v Jumua Metals and Minerals HH-844-
194 stated as follows:

“The Act does not define the term “prospect” However, the term prospect is
generally understood to mean to explore an area especially for mineral
deposits”

Taking from ZISENGWE J’s remarks in the case cited above prospecting is just
exploration it does not entail any extraction of minerals, clearly a holder of a
prospecting license has no underground rights and therefore cannot
commence any activity that is related to the extraction of minerals. In a
nutshell, a holder of a prospecting license may only explore whereas a holder
of a special grant to carry out mining activities may extract minerals and
ultimately holds the underground rights for the area defined in their licence.

Land-owner’s rights vs Prospecting Licence or Special Grant Holder’s rights

As aforementioned, a land owner mainly has surface rights. The answer as to

“no person shall be entitled to exercise any of his rights under any prospecting
licence or any special grant to carry out prospecting operations or any
exclusive prospecting order upon any holding of private land except with the
consent in writing of the owner or of some person duly authorised thereto by
the owner or in the case of a portion of Communal Land, by the occupier of
such portion, or upon any State land except with the consent in writing of the
President or of some person duly authorised thereto by the President”

While section 31 (1) (g)(i) states:

“no person shall be entitled to exercise any of his rights under any prospecting
licence or any special grant to carry out prospecting operations or any
exclusive prospecting order except with the consent in writing of the owner or
of some person duly authorised thereto by the owner, upon any holding of land
which does not exceed one hundred hectares in extent and which is held by
such owner under one separate title.

The two provisions are clear, landowner rights supersede those of a prospecting
licence holder, this is so, in that at all material times after the granting of a
licence the holder has to ask for consent which has to be in writing from the
landowner before the commencement of any works.

4
Mount Grace Farm (Pvt) Ltd v Jumua Metals & Minerals & Anor (HH 844 of 2019, HC 5846 of 2019) [2020] ZWHHC 844 (08
January 2020); | ZimLII
In relation to section 31 of the Act, the court in Mount Grace [Supra] states, that
the section spells out limitations regarding the exercise of rights conferred to a
holder of either a prospecting licence or a special grant.

A holder of any such licence cannot commence any work without the written
consent of a landowner, this here is the most important limitation. Effectively,
the rights of a landowner trump those of licence holders.

In addition to consent, section 38 of the Act requires a holder of any such

Conclusion

In Mount Grace [Supra] the court stated that in terms of section 31 of the Act a
landowner has a clear right to grant or withhold consent to a holder of a
prospecting licence or special grant.

This puts the debate to rest. In law a landowner’s rights to his own land trump
the rights of a prospecting licence or special grant holder except, in limited
circumstance were such consent may be deemed to have unreasonably
withheld.

By: Tatenda Allan Musunga