Forfeiture in mining law in Zimbabwe

Zimbabwe’s mining sector, the engine room of the nation’s export earnings, is entering a period of intense legislative scrutiny and reform. Driven by a clear policy of resource nationalism and a focus on maximizing local benefit, the future of mining law in Zimbabwe is being shaped by a push for greater state oversight, stringent environmental compliance, and mandatory value addition .

The legal position regarding the forfeiture of mining titles in Zimbabwe is clearly delineated within the framework of the Mines and Minerals Act [Chapter 21:05]. The Mines and Minerals Act serve as the cornerstone of the legal framework regulating the extractive industry within Zimbabwe.

This primary legislation comprehensively governs all aspects of mineral resource management within the country’s jurisdiction.

This legislation grants the State, acting through the Mines and Mining Development minister, the authority to cancel or forfeit a mining right, claim, or lease due to non-compliance with prescribed statutory obligations.

The legal basis for forfeiture rests on the principle that a mining right is a privilege granted by the State, not an absolute right, and is conditional upon the title holder fulfilling specific duties.

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Forfeiture is the legal process where the state (via the mining commissioner or provincial mining director) takes back mining rights from a claim holder due to non-compliance with the Mines and Minerals Act [Chapter 21:05].

Reasons for forfeiture

Failure to obtain inspection certificate for block

Section 260 is very clear on the reasons for forfeiture, ailure to secure the mandatory inspection certificate for a mining block within the time frame legally specified will subject that block to forfeiture, unless the holder has successfully obtained a protection certificate under the provisions of Section 217, which serves as an exemption to this penalty.

This is key in mining law, if one fails to obtain inspection certificate the ming block will be forfeiture. If within a period of thirty days from the date of posting such notification such holder has failed to obtain such inspection certificate, the mining commissioner shall inform the Board and the Board shall, by registered letter, notify the holder that the mining lease is liable to forfeiture.

Failure to comply with work obligations

This is perhaps the most common reason for forfeiture proceedings. The Mines and Minerals Act mandates that all registered claims and leases must demonstrate continuous and meaningful development work, Section 261 of the Mines and Minerals Act [Chapter 21:05] clear stipulates that, If the holder of a block of precious metal claims which are registered as alluvial, eluvial, rubble deposit or dump claims fails to work his claims continuously, the block shall be liable to forfeiture unless he has been exempted in respect of such block under paragraph (a) of subsection (2) of section two hundred and nineteen. Clearly it seemed that, in ming law maintenance of miming block is legally important as it preserve mining title.

Non-payment of fees and levies

The financial obligations associated with holding a mining title are non-negotiable. Failure to remit prescribed fees can trigger forfeiture proceedings in mining law, section 264 very clear, If at any time the monthly rent of any registered mining site has remained due and unpaid for a period of three months or more, such site shall be liable to forfeiture provided that, in the case of a site attached to a mining lease, the mining commissioner shall by registered post notify the lease holder that payment of the site rent is so in arrear and if such rent is not paid within thirty days of the posting of such notification, the mining commissioner may declare the site to be forfeited. 

Failure to comply with directive given by the minister

 A holder of a registered mining location fails to comply with a directive given by the minister in terms of subsection (5) of section two hundred and twenty which talks about unutilised dump and the minister may order in writing that the registered mining location on which the dump concerned is situated be forfeited, unless the holder thereof satisfies the minister that he took all reasonable and practicable steps to comply with the directive either by working the dump himself or by tributing it to someone else but was unable to do so.

Powers of commissioner towards forfeiture

In terms of section 271,where any mining location is liable to forfeiture in terms of this mines and minerals Act, the mining commissioner may declare such location to be forfeited thus the commissioner has power in terms of the law to declare forfeited mining location.it is lawful for any mining commissioner, claim inspector or other person duly authorized thereto by the mining commissioner at any time after the date of forfeiture, to remove and destroy all the beacons, pegs and boundary marks of such location.

Legal process after the mining block have been forfeited

The official lists detailing mining locations that have been forfeited over time must be publicly displayed on a board exhibited in a conspicuous location outside the mining commissioner’s office.

Following the posting of the notice pertaining to a specific forfeiture, the affected mining location becomes eligible for relocation by another party only after thirty-five clear days have elapsed, excluding the date the notice was first posted, unless one of two conditions intervenes either the declaration of forfeiture is revoked under the terms of Section 272, or the secretary of mines issues a specific instruction to the contrary within that notice period.

Cancellation of a certificate of registration

Section 50 of the Mines and Minerals Act [Chapter 21:05] (the Act) sets out the procedure for cancellation of a certificate of registration and this was noted in the case of quarrying enterprises (private) limited v southern granite (private) and minister of mines & mining development.

In the case of BMG Mining (Pvt) Ltd v mining commissioner Bulawayo & Ors HB-05-11 the procedure for cancelling a mining claim was extensively discussed by Mathonsij(as he then was)

It is important to note that, prescription in ming law in Zimbabwe. It is pertinent to take cognizance of section 58 of the Act.

It provides that when a mining location or a secondary reef in a mining location has been registered for a period of two years it is not permissible for any person to dispute title in respect of such location as discussed in the case of Nyika Nhundu v the provincial mining director Masvingo and others.

• Adam Mavhiko is a fourth-year law student at Midlands State University and he is the vice-president at Faculty of Law Association. He is a passionate leadership trainer, researcher and he has keen interest in changing the narratives of Africa through his writings and he writes in his capacity. He can be contacted on +263776026385