Introduction
In the last two weeks’ episodes the focus was on how one can become an approved prospector and the legal issues incidental to becoming an approved prospector. This week’s focus is on the discussion of land that is open to and not open to prospecting and other incidental issues since mining is highly regulated.
Land open to prospecting
In terms of section 26 and subject to the provisions and limitations provided for in section 31 of the Act, the following land is open to prospecting;
(a) all State land and Communal Land,
(b) all private land (title) which had been reserved either to the British South Africa Company during the colonial times or to the Government of Zimbabwe the right to all minerals or the power to make grants of the right to prospect for minerals all land held by any person under any enactment or agreement whereby such person is entitled to obtain from the State title thereto on the fulfilment by him of the conditions prescribed by such enactment or agreement.
(c) all land held by any person under any enactment or agreement whereby such person is entitled to obtain from the State title thereto on the fulfilment by him of the conditions prescribed by such enactment or agreement.
Land not open to prospecting
However, in terms Section 31 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;
(a) any holding of private land except with the consent in writing of the owner or of some person duly authorised thereto by the owner and in the case of a portion of Communal Land, by the occupier of such portion of land. In the case of any State land the consent of the President or of some person duly authorised thereto by the President in writing.
It is also pertinent to note that while mining is allowed to be carried out on any communal land, state land etc, there are regulations, which statutorily bind the miner/prospector, and these are as follows;
(a) Mining activities should be carried out at least four hundred and fifty metres away from one’s homestead, whether such homestead is already erected or is actually in the course of erection. However, if a principal homestead is not erected on such a site within three years after the date of such registration, such site shall thereupon become open to prospecting.
(b) Mining operation should be carried out at least ninety metres away from;
(i) any area set aside on which housing constructed of brick or concrete has been erected for occupation by farm employees, if the total value of such housing is not less than five thousand dollars;
(ii) of any other building or permanent improvement of a value of not less than five hundred dollars;
(iii) of any other building or permanent improvement of a value of not less than five hundred dollars etc.
Landowner miner disputes
The Mines and Minerals Act (Chapter 21:05 recognises and anticipates a scenario whereby landowners and prospectors would be involved in a rights dispute. The Act in Section 32 provides that if any dispute arises between the holder of a prospecting licence or a special grant to prospect or an exclusive prospecting order and a landowner or occupier of land as to whether land is open to prospecting or not, the matter shall be referred to the Administrative Court for a binding decision. In this instance, there is no need to go to the relevant administrative mining institutions for recourse. However, the Act does not provide timelines within which the disgruntled party has to act. It would be advised that parties act within the most reasonable time as possible.
Conclusion
This is it for this week and wishing those that are developing an interest in the field of mining the best of adventure. In the part 5, our focus will be different licences that one can acquire when intending to venture into the mining business.
Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Tapiwa Muhlwa is a Senior Associate, email: tapiwa@ zenaslegalpractice.com
