End User Certificate:

Guidelines to Industry Relating to the Process of the Legalisation (Authentication) of Foreign End User Certificates (EUC's) for Controlled Goods exported from South Africa

Question Answer
1. What is an End User Certificate (EUC)? - An End User Certificate (EUC) is a clear written undertaking of a buyer / importer in a foreign country that any controlled goods transferred from South Africa, is for its sole use.

- Furthermore, that the buyer / importer has to certify that the controlled goods is not destined for transfer or re-export to any other entity or State in its original form, without the prior written consent of the relevant South African authority.

- Such consent will have to be obtained from the relevant South African Authority in terms of the applicable South African legislation:

  • National Conventional Arms Control Act, 2002 (Act No. 41 of 2002);
  • Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006 (Act No. 27 of 2006);
  • Teargas Act, 1964 (Act No. 16 of 1964);
  • Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993); and
  • Nuclear Energy Act, 1999 (Act No. 46 of 1999).

Note: The EUC must be an original document.

2. What should the EUC contain? -The EUC identifies the transferred controlled goods as well as the quantity of the controlled goods.

- The information pertaining to the controlled goods on the EUC must correspond with the order from the buyer / importer regarding the specific transaction of the controlled goods (this includes any Annexes).

- The EUC must at all times bear witness of:

  • the place and date of issue;
  • a reference number;
  • the signature and name, as well as the title and position of the buyer / importer;
  • Conditions imposed by South Africa; and

- It must include an official stamp and or seal legalising (authenticating) the EUC by the appointed Government authority in the buyer / importer's country indicating that it is an authentic document.

- The foreign buyer / importer has to declare in the EUC that no controlled goods obtained from South Africa will be transferred or re-exported to any other entity in or outside the buyer / importer's Country without the prior consent of the relevant South African Authority.

- It has to state that the controlled goods will not be used for the development of weapons of mass destruction programmes.

- It must also state that the controlled goods will not be transferred or re-exported to any country or entity, against which a United Nations Security Council Arms Embargo has been imposed or who have been identified as a terrorist organisation.

3. Who is responsible for obtaining the EUC? - It is at all times the responsibility of the seller / exporter in South Africa to obtain the EUC from the buyer / importer in the foreign country.

- Such an EUC must be legalised (authenticated).

4. What does Legalisation (Authentication) of an EUC encompass? - Legalisation is a term commonly used to describe notarial processes aimed at establishing the veracity of a public document.

- The term 'authentication' is often utilised as a more defined description of the process.

- In present context it is the formality by which an original signature on a public document is verified, as well as the capacity in which the signatory acted and where appropriate, the identity of the seal which the document bears.

- Authenticating documents means that public documents are affixed either with an Apostille Certificate (between countries party to The Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, hereafter referred to as "The Hague Convention") or with a Certificate of Authentication between countries that are not party to The Hague Convention.

- Apostille certificates are issued by designated "central authorities".

- In the case of South Africa these are the Department of International Relations & Cooperation or the Department of Justice & Constitutional Development. South Africa's diplomatic and consular representatives abroad cannot issue an apostille.

- They are only mandated to legalise foreign public documents originating in the country of accreditation that are already authenticated by a recognised authority of that country of which a specimen signature is available at South Africa's mission.

- Such authentication means that the signature of the person who signed the foreign public document is verified by a competent authority of the country of issue, usually the Ministry of Foreign Affairs (in terms of Article 41(2) of the Vienna Convention on Diplomatic Relations, 1961).

- In different terms: it is but rarely possible for a South African diplomatic or consular representative to receive authority to authenticate an EUC directly, without the intermediate step of authentication by the host country's Foreign Ministry.

- EUC's are public documents.

- If the buyer / importer's country is a state party to The Hague Convention the designated central authority in the buyer's or importer's country may legalise (authenticate) the EUC with the prescribed apostille and it may be submitted in South Africa without any intervention by a South African diplomatic or consular representative abroad.

5. Which South African Authority is the final authority to legalise (authenticate) foreign EUC's on behalf of the State? - The Department of International Relations and Cooperation (DIRCO), Chief Directorate: Consular Services in Pretoria.

- Such authentication is only done subsequent to a statement issued by the Directorate: Disarmament and Non-Proliferation of DIRCO that there is no objection to the sale.

Address:
OR Tambo Building
460 Soutpansberg Road
Rietondale
Pretoria
Telephone: (012) 351-1231/1232/1268/1269
Fax: (012) 329 1752
Website: www.dirco.gov.za

6. Will an EUC bearing an apostille be accepted? - An EUC from the importing country, duly authenticated by means of an apostille is usually accepted by the exporting country as authentic if the latter is also a state party to The Hague Convention.

- Exceptions may occur if irregularities are suspected or the format and text of the documents are not in compliance with prescripts.

7. How can I keep track when new countries join the Hague Convention? - The easiest way to find out whether a new country has become a party to The Hague Convention is to verify it on the website of The Hague Conference on Private International Law at www.hcch.net.
8. What is the possible route to follow to have an EUC legalised (authenticated) in a case where a country is not a state party to The Hague Convention? The exporter must have the EUC authenticated by the South African diplomatic or consular representative accredited in the foreign buyer's or importer's country.

- Such authentication is the verification of the signature of the competent authority designated by the host country that, in turn, acted to verify the original signature on the EUC.

- The South African representative will request a specimen signature and full detail of the person whose signature is being verified (if not already in possession of the South African representative).

- The Chief Directorate: Consular Services of DIRCO in Pretoria will, in turn, verify the signature of the South African representative, provided the Directorate: Disarmament and Non-Proliferation of the DIRCO has not objected to the sale.

- In cases where South Africa does not have physical representation in a foreign buyer's / importer's country the South African diplomatic/ consular representative with non-residential accreditation must be approached in order to finalise the legalisation/ authentication process.

- The DIRCO website can be consulted for a complete list of South African diplomatic and consular representatives at www.dirco.gov.za.

After the importer's local Embassy/High Commission has legalised (authenticated) the EUC, DIRCO's Chief Directorate: Consular Services will then legalise (authenticate) the signature of the Ambassador, High Commissioner or the delegated official at the Mission, which appears on the EUC.

The DIRCO's Chief Directorate: Consular Services keeps specimen copies of the signatures of Heads of Foreign Missions and or their delegated official(s) in South Africa. Should the Head of Mission or the delegated official's specimen signature(s) not be on record at the DIRCO's Chief Directorate: Consular Services, a Note Verbale should be forwarded by the Head of the Foreign Mission in South Africa to the DIRCO's Chief Directorate: Consular Services containing the specimen signatures.

Industry may be aware that there are other legal means to legalise (authenticate) documentation in South Africa. Due to the nature of the controlled goods and technology indicated in the above-mentioned Acts, the procedure to authenticate EUC's as described above should be followed, the cost of which will be minimal to industry.

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