Acquisition,nature and transferability of a prospective licence

Rodger Gaiko and Fungai Chimwamurombe

The primary statute governing mining law in Zimbabwe is the Mines and Minerals Act [Chapter 21:05] (hereinafter referred to as “the MMA”), together with the regulations promulgated under it.

A mining or mineral right can be procured through, inter alia, the obtainment of a prospecting or exploratory permit.

The word prospecting permit and exploratory permit are perfect synonyms that can be used interchangeably and that bore the same connotation.

However, for the sake of consistence the term prospecting licence shall be employed through out the discussion.

The nature and acquisition of prospecting permit or license is provided for under PART IV of the MMA.

There are two types of exploratory permits or licenses viz prospecting licence and exclusive exploration orders.

However, the later falls out of the purview of this article.

The right to search for and prospect for minerals can be derived from a prospecting licence.

Ordinary prospecting licenses are provided for in PART IV of the MMA.

Section 20 of the MMA provides that any person who is a permanent resident of Zimbabwe may take out at the office of any mining commissioner one or more prospecting licences on payment of the appropriate fee prescribed in respect of each such licence.

In terms section 27 of the MMA upon its acquisition a prospecting Licence grants the holder, a right to prospect and search for any minerals and natural gases on land open to prospecting without removing or disposing of minerals discovered, except for purposes of testing and determining the nature of the minerals discovered.

For a prospecting licence to be granted two minimum mandatory requirements must, of course, be complied with viz the applicant must be a permanent resident of Zimbabwe and that the applicant must be above the age of eighteen.

The manner in which a prospecting license may be acquired is provided for in section  20 of the MMA. The said section lays down that Prospecting Licence may be issued to any Zimbabwean who is permanently resident in the country and above the age of 18.  Section 24 of the MMA provides that no person who is under the age of eighteen years shall hold any prospecting licence.  

Section 23 of the MMA specifies the duration of a prospecting licence by laying down that a prospecting licence shall be valid until the second anniversary of the date of issue thereof.  It is fundamental to make mention of the fact that in carrying out mineral prospection the consent of the land owner is not required.

All that a prospector must do is to notify the land owner.  Section 25 (1) of the MMA stipulates that the holder of a prospecting license has an obligation to give notice to the landowner of his intention to prospect within the land of the latter.

No consent to the occupier is required. Section 25 of the MMA  injunct that during the process of prospection no drilling or excavation work is permitted save for purposes of testing and determining the nature of the minerals discovered. A prospector is obliged to carry out the prospecting in a good and workman manner.

The sale of prospecting licence is forbidden. No person shall sell or dispose of any prospecting licence or certificate of registration as an approved prospector.

This therefore implies that prospecting rights once acquired are not transferable. They are personal to the acquirer.

In Vansa Vanadium SA Limited v Registrar of Deeds and Others 1979 (2) SA 784 it was held that a prospecting contract does not constitute a real right. It is not capable of being registered in the Deeds Registries office.

Rodger Gaiko, Debt recovery at Zenas legal practice can be contacted on What’sApp +263 77 385 5859 and emailed on rodger@zenaslegalpractice.com

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted through email fungai@zenaslegalpractice.co.zw