Online Reporter
Dr John Laisani
WHEN mining licences are issued over land that is already being farmed, the result is predictable: acrimony, contested ministerial decisions and, increasingly, litigation.
The tension is not merely a clash of interests; it reveals a governance gap in how State power over land and subsoil resources is exercised.
Recent litigation shows that these are not theoretical problems.
Courts have repeatedly been asked to untangle whether the right to the surface or the right to the minerals should prevail, and what processes the State must follow before it disrupts livelihoods.
But there has not been a single, neat judicial rule that settles the matter once and for all.
However, the picture is more nuanced than many commentators suggest.
At law, minerals are vested in the State, and the grant of mining rights confers powers that allow holders to enter land for prospecting and mining.
That statutory architecture, centrally the Mines and Minerals Act [Chapter 21:05], is the legal foundation for the position that mineral rights can, in specific circumstances, override a landholder’s exclusive use of the surface.
Courts have repeatedly affirmed that once a mining claim or lease has been lawfully acquired, the holder may exercise their rights even on land that is otherwise occupied for farming purposes.
However, these mining rights are not absolute.
Section 31(1) of the Act expressly prohibits mining operations on cultivated land or within 15 metres of such land without the consent of the lawful occupier.
This statutory safeguard means, in practice, farming rights can in certain instances prevail over mining rights.
The Supreme Court, in SC 95/24 (2024), confirmed this interpretation, holding that a farmer could lawfully resist encroachment where cultivation was threatened, thus affirming that the statute carves out clear limits to the reach of mining claims.
In effect, Section 31(1) demonstrates that the legislature recognised farming as a protected land use, which, in certain circumstances, overrides mining.
Thus, the contest between mining and farming rights is not one of automatic supremacy of one over the other, but of careful statutory and judicial balancing.
Where miners comply fully with the Mines and Minerals Act, courts may uphold their rights against farmers.
Conversely, where miners disregard statutory limits, such as encroaching on cultivated land without consent, the law provides recourse for farmers to protect their land and livelihood.
Case law confirms that the courts will give effect to statutory mineral rights, but the rulings are not uniform and often depend on the precise relief sought and the facts before the court.
A commonly cited High Court line of decisions emphasises that a farmer cannot simply bar prospectors, as the right to minerals vests in the State and prospecting may lawfully occur where statutory steps have been followed.
But other judgments have stressed that even when miners hold statutory rights, they must respect property and procedural safeguards: proper notice, consultation, environmental assessment and, where appropriate, compensation.
These pronouncements illustrate legal tensions but have not produced a single binding rule that resolves the recurring disputes.
The Supreme Court’s recognition of Section 31(1) in SC 95/24 now provides much-needed clarity, showing that farmers are not entirely powerless in the face of mining encroachment.
Environmental and social safeguards are already embedded in Zimbabwe’s legal framework: the Environmental Management Act and its EIA (environmental impact assessment) regulations require project proponents to submit EIA/ESIA (environmental and social impact assessment) reports and obtain an environmental impact assessment certificate (EIAC) from the Environmental Management Agency (EMA) before certain mining activities commence.
Developers typically commission accredited consultants to prepare ESIAs and environmental management plans, which EMA reviews and authorises.
Large, financed mines routinely follow this process to satisfy regulators and investors.
The problem in practice is not the absence of rules but weaknesses in sequencing, report quality and enforcement.
Studies have found that some EIA reports are deficient, artisanal and small-scale miners often evade the process and EMA’s monitoring capacity is overstretched.
Courts have recently highlighted that failure to obtain an EIAC before issuing a mining permit can invalidate mining rights, signalling that compliance is not optional.
Reform must, therefore, focus on strengthening EIA quality, resourcing EMA, ensuring consistent enforcement and linking EIAC compliance directly to the validity of mining claims.
The crisis can only be resolved through a clear and coherent framework that harmonises land and mineral governance.
A sound model would rest on four pillars: legal alignment, institutional coordination, procedural safeguards and conflict resolution mechanisms.
On the legal front, amendments to the Mines and Minerals Act should explicitly recognise the coexistence of agricultural and mineral rights, mandating consultation, compensation and restoration duties before mining commences on farmland.
Institutionally, a joint land-use screening system should be created between the Ministry of Mines and Mining Development’; and the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development to prevent overlapping allocations.
Procedurally, miners should be obliged to present proof of EIAC compliance, compensation arrangements and community consultation before being granted entry onto agricultural land. Finally, a specialised tribunal should be established to resolve disputes swiftly, drawing on technical, legal and environmental expertise.
Such a model would allow the State to retain control of mineral resources while protecting food security, rural livelihoods and investor confidence.
It would also reduce the burden on the courts by providing structured channels for negotiation and arbitration before disputes escalate.
If the Government adopts this integrated framework, Zimbabwe could avoid perpetual disputes, foster sustainable coexistence of mining and farming, and unlock the combined potential of its mineral wealth and agricultural capacity.
If it fails to act, the country risks entrenching conflict, undermining productivity and destabilising rural communities.
Dr John Laisani is a research fellow at the University of South Africa, managing director of Laisani Consulting and Advisory and an advocate of the High Court of South Africa. He writes in his personal capacity as a researcher. He can be contacted at [email protected]
Tinaye Agere