Great Zimbabwe University

HERBERT CHITEPO LAW SCHOOL

BACHELOR OF LAWS (HONOURS) DEGREE

NAME : BRIAN MAZETESE

REG NUMBER : M198069

MODULE TITLE : MINING AND ENERGY LAW

MODULE CODE : LLB 6

LECTURER : Mrs F. NDLOVU

YEAR : 2022 PART 3, SEMSTER 2.

PROGRAMME : BACHELOR OF LAWS DEGREE (LLB)

ASSIGNMENT : One [1].

QUESTION :

It is understood that the Mines and Minerals Act [Chapter21:05] has made
significant inroads to the common law property maxim cuius est solum eius est
usque ad caelum et ad inferos, (the owner of the land is the owner of everything
built upon the land and everything below the surface). Critically discuss what the
common law position was and how the Mines and Minerals Act [Chapter21:05] has
changed ownership of severed and unsevered minerals in Zimbabwe

DUE DATE : 16 June 2022

:
In in Zimbabwe mining law is regulated by the Mines and Minerals Act. The act
shows the departure from the common law position on mineral and land rights. This
paper seeks to show this change and to show how the Act have changed the
common law position. The paper will begin by bringing out what severed and
unsevered mineral rights are and move on to show the old common law position,
from there the writer will show how this position was changed by the Act.

Severed mineral rights can be noted when mineral rights belong to another person
other than the one who owns the surface. According to Foley and another
severance can occur through an express transfer or lease of the mineral estate
separate from the surface estate, or reservation of the mineral estate to the seller in
a deed for conveyance of property. 1 This shows that another person can own
mineral rights on someone else’s property and when this occur we can say the one
with mineral rights have severed mineral rights. Unsevered mineral rights thus refers
to when the owner of the surface also owns the mineral rights.

Having defined the terms unsevered and severed there is now need to bring out the
common law position. The common law position can be traced to the Roman law,
which part of the law which was brought to Zimbabwe by the settlers, Roman-Dutch
Law. According to CG van der Merwe, landownership was widely regarded as near
absolute and in principle unencumbered. 2 Minerals were regarded as fruits of the
land and capable of separation by the owner. This shows us that menerals belonged
to the land owner. The above position is supported by Badenhorst who states that
the entitlement to exploit the minerals in, on and under the land is one of the
entitlements the land own have. 3 This shows that the land owner was allowed to do
what he wanted with his or her land since there was a private ownership of mining
rights. this common law position was once upheld by the courts, this can be noted in
the Union Government v, Marais 1920 AD4 case where it was upheld that

1
Foley and lardner. Severed mineral rights- common real estate title issues in renewable projects. Part 1 2013
2
CG van der Merwe sekereg 2ed. 1989. Durban . butterworths.
3
Badenhorst p.j; the revesting of state entitlements to exploit minerals in south Africa.; private or
deregulation.
4
Union Government v, Marais 1920 AD
demonstrates that the owner of the land is not only the owner of the surface mine
and mineral but everything that is adequate to it that is from the surface of land
down to hell and to heavens. Although the above mentioned case was a South
African case it must be noted that this was also the position in Zimbabwe as both
nations shared the same legal history.

It is also important to know that the common law position was a bit in line with
precolonial position as mining was one of the indigenous people’s main economic.
Institutionally, land ownership, utilisation and protection of range resources was
vested in the hands of the traditional leadership in the form of chiefs, their aides and
the community at large. 5 At that time, people had a unitary system of worship and
viewed land and other resources as inheritance from ancestors to safe keep for
posterity. Therefore, mineral rights vested in the landowners who in this case were
the communities.

From, the paragraph above it can be noted that the Common law position was that
the land owner had the right also to the minerals on and under the surface of his
land. There is now need to show how this common law position was changed by the
Mines and Minerals Act.

Section 2 of the Mines and Minerals Act which was enacted in 196, gave the
President of Zimbabwe the dominium over all minerals mineral oil and natural gases
as well as the right to search, mine and disposing of the same. 6 The act provides
that, the dominium in the right of searching and mining for and disposing of all
minerals, mineral oils and natural gases notwithstanding the dominium or right which
any person may possess in and to the soil on or under such minerals oil and natural
gases are found or situated, is vested in the president. 7 The above section from the
Act shows a departure from the common law position taking away from the
landowner mineral rights which were once guaranteed under common law. The
President is now the one who has the authority to distribute the mineral rights upon
application and through the Ministry of Mines (Mining Director within the Province)
acting as subordinates. Moving onto section 28 (1) (a) explains that upon any
holding of private land except with the consent in writing of the owner or of some
person duly authorized thereto by the owner or, in the case of a portion of

5
Chivandi etal 2010. Landownership and range resources management in Zimbabwe. a historical review.
Midlands state university.
6
Mucheche c.mining and exploration law in Zimbabwe.
7
Mines and mineral act [chapter ..] section 3
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 authorized
thereto by the President.8

The above provision is similar to the South African one. Whilst interpreting the South
African provision which is similar to ours in the case of Joubert and Others v
Maranda the court stated that by section 3(1) of the Act, which provides that mineral
and petroleum resources are the common heritage of all people of south Africa and
the state is the custodian thereof for the benefit of all south Africans. 9 This case
brings out the reason why the common law position was change and the reason why
the legislatures so it necessary to go against the principle of absolute ownership of
property which is enshrine in the Constitution, section 72 of the Zimbabwean
Constitution () states that, every person has the right in any party of Zimbabwe, to
acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of
property, either individually or in association with others. 10

In the case of Satond Investments Private Limited v Munashe Shava, in which a

dispute had arisen between a landowner and a miner, the court reiterated the
supremacy of the mining rights over landowner’s rights. The court held that, for the
avoidance of doubt, s 179 of the gives landowner lesser rights than the miner’s
rights. The above case shows us that the miner have rights which superior to those
of the landowner, the farmer’s rights are subordinate or should accede to the miner’s
right.11 The relevant provision in the Act states that, subject to subs (12) of section
one hundred and eighty, the owner or occupier of land on which a registered mining
location is situated shall retain the right to graze stock upon or cultivate the surface
of such location in so far as grazing or cultivation does not interfere with proper
working of the mining purposes. 12 This also brings out the point that the famer’s
rights are inferior to those of the miner, as the landowner has to enjoy his rights in a
way that doesn’t affect the miner who is mining on his/her land.

Section 178 the Act provides for the land rights that accrue to the miners or people
who have prospecting and mining licenses. These rights include the right to use any
surface within the boundary, use soil, waste rock (free of charge) and the right to

8
Section 28(1) (a) of the Mines and Minerals Act (Chapter 20.27)
9
Joubert v maranda
10
Constitution of Zimbabwe amendment ( no 20) section 71
11
Satond investments private limited v munashe shava. HH. 336
12
Minesand mineral Act [chapter ] section 179
sell the waste rock.13 Here the Act takes or limits the land owner’s ownership of his
land. The miner gets the right over the mineral on someone else’s land then also
gain land use rights due to those mineral rights. this supported by the Anglo
operations ltd v Sandhurst Estates Pvt. case where the court was requested to
determine whether the right of a mineral right holder include the right to open cast
mining at the expense of the surface rights owner. It was held that provided that it
was necessary to undertake open cast mining operations and provided that the right
is exercised in a reasonable way and all precautionary measures against degrading
the environment are taken. 14 This further brings out the fact that the Act have
removed the common law position as mining rights are trumping other land rights
the rights of the landowner are subservient to the rights of the claim holder.

Moving on there is need to determine whether the new position established by the
act is fair. It is important to determine this question as the new position goes against
the principle of absolute ownership which is enshrined in the Constitution which is
the supreme law of the land as according to its section 2. 15 There also need to
establish why the legislature made saw this fit.

According to Section 86(2) the fundamental rights and freedoms set out in this
chapter may be limited only in terms of a law of general application and to the extent
that the limitation is fair, reasonable, necessary and justifiable in a democratic
society based on openness, justice, human dignity, equality and freedom, taking into
account the relevant factors, including… 16 It must be noted that one of these rights
include the right to property. On the face of it one can argue that the Act is violating
the above mentioned right to property. The is need to determine if section 86 (2) can
be used to justify the new position. As stated in the case of Joubert and Others v
Maranda mineral rights should be owned by the community at large therefore it is
fair to take them away from the land owner to ensure that the public benefits. It
therefore follows that, the dominance of mineral rights over property rights is
justiciable.

Moving on there is need to not that mining is usually more valuable that other land
use activities such as farming there the new position is justifiable. Given that mining
is profitable it is also expensive to carry out, not everyone can be miner and usual

13
Section 178 of the Mines and Minerals Act (Chapter 20.27)
14
Anglo operations ltd v Sandhurst Estates pvt 2007 vl2 ALL S.A 567
15
16
Constitution of Zimbabwe amendment 20 act 2013 section 86(2)
those who cannot afford a prospecting licence can’t fully utilise the mines, it is
therefore important to give mining rights to those who have the resources so that the
whole nation can benefit.

In conclusion the Mines and Minerals Act (Chapter 20.27 ) completely

revolutionarised the mineral rights from the common law position which existed in
Zimbabwe, the common law maxim cosuss.. was altered by the mines and Minerals
Act . This position is also upheld in several cases discussed above.

BIBLIOGRAPHY

CASES

Union Government v, Marais 1920 AD

Minister of Minerals and Energy v Agri South Africa

 Jourbet v Maranda 2010 vl2 S.A pg 67

Anglo operations ltd v Sandhurst Estates pvt 2007 vl2 ALL S.A 567

STATUTE

The Mines and Minerals Act (Chapter 20.27)

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